Alice Chemandan Siyoi v Joel Kiptoo Ng’eno & 3 others; John Thuo Gakuru(Interested Party) [2019] KEELC 1352 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 1st defendant effectively rescinded the sale agreement in 1991
Rescission not proved; there was insufficient evidence of a refund actually deposited and made available, and of eviction or interruption of possession
The only evidence of termination was a letter from the 1st defendant's advocates. He failed to prove the funds were deposited and the family received or was enabled to collect them, and failed to show eviction or interruption of possession. The agreement was severable; 5 acres were paid for and occupied, so the agreement was not wholly rescinded.
Whether the suit is defeated for want of compliance with section 3(3) of the Law of Contract Act or lack of land control board consent
Neither point defeats the claim: the suit is founded on adverse possession, not contract, and lack of LCB consent does not defeat the claim per cited Court of Appeal decisions
The Originating Summons mentions no contract; its sole basis is adverse possession, so section 3(3) is inapplicable. On consent, the court noted a line of Court of Appeal authority holding lack of land control board consent does not defeat such claims, and no evidence of forgery was presented.
Whether the plaintiff proved adverse possession for the requisite 12 years
Yes; possession from 1988 was open, peaceful and uninterrupted, and time expired in 2000 (or 2003 at latest)
Possession taken in 1988 under the sale agreement was continuous, open and inconsistent with the owner's rights. No eviction suit was brought within 12 years of the agreement (or of the purported 1991 rescission), so the owner's title was extinguished. Possession by the deceased husband enured to the plaintiff as his wife.
Whether the land in the agreement is the same as the parcel named in the Originating Summons
Issue dismissed; defendants never specifically denied identity of the land in their pleadings, and raising it now would amount to ambush
Parties are bound by their pleadings. The defendants' replying affidavits contained no specific denial that plot No. 9 Koitogos Farm corresponded to LR Kitale Municipality Block 15/Koitogos/1011, so no burden shifted to the plaintiff and the point could not be raised at trial.
Legal principles established
#- A purchaser in possession of land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run
- Possession need not be actual and physical; it can be constructive, and fencing or cultivation suffices
- Time under the Limitation of Actions Act ceases to run when the owner asserts his right or the adverse possessor admits it
Court orders
#- 1.A declaration that the plaintiff has been and is in adverse possession of land parcel No. Kitale Municipality Block 15/Koitogos/1011
- 2.A declaration that upon the expiry of 12 years from 1988 the 1st defendant held the title to the land in trust for the plaintiff and had no title of his own to transfer to the 2nd, 3rd and 4th defendants
- 3.A declaration that the transfer of the suit land to the 2nd, 3rd and 4th defendants, its subdivision and transfer to the interested party are illegal, null and void
- 4.An order cancelling the subdivision of Kitale Municipality Block 15/Koitogos/1011 and the mutations, with the title reverting to parcel No. Kitale Municipality Block 15/Koitogos/1011
- 5.An order that the 2nd, 3rd and 4th defendants transfer the suit land to the plaintiff, and in default the Deputy Registrar to sign the necessary documents
- 6.The defendants to bear the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (claim for adverse possession over land)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sila v Al Haiee Investments Limited & 5 others (Enviromental and Land Originating Summons 1030 of 2016) [2025] KEELC 966 (KLR)[2025] KEELC 966 (KLR)27 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Alice Chemandan Siyoi v Joel Kiptoo Ng’eno & 3 others; John Thuo Gakuru(Interested Party) [2019] KEELC 1352 (KLR)", Case Analysis (2019). Originating Summons dated 3rd October 2012, Kitale. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1352/eng@2019-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.