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ELCDismissedOriginating Summons dated 17th October, 2018 (Machakos)· [2019] KEELC 1615 (KLR)

Mwene Munda Welfare Association v Kitui County Government & 2 others [2019] KEELC 1615 (KLR)

Environment and Land Court
20 September 2019
2,807 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled you cannot claim land owned by a county government through adverse possession, dismissing the group's injunction bid with costs.

What this practically means

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Executive summary

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The Plaintiff, a registered welfare group, commenced proceedings by Originating Summons dated 17th October, 2018 seeking a declaration that it had acquired title by adverse possession to a portion measuring about 3,000 acres of L.R. No. 12010 at Kitui Yatta B2 (Katoteni), and simultaneously moved the court by Notice of Motion for a temporary injunction restraining the Defendants from harassing, evicting or interfering with its members' possession. The Plaintiff claimed its members had been in open, uninterrupted occupation of the suit land since 2006. The 3rd Defendant denied the Plaintiff's occupation, asserting its own members' occupation and citing a status quo order in Machakos HCCC No. 9 of 2008. The 1st Defendant (Kitui County Government) filed a preliminary objection relying on Section 41 of the Limitation of Actions Act, contending adverse possession cannot run against government, county or public land. The court found that the suit land was set apart under the Trust Land Act, that the 1967 lease to Katoteni Ranching Society lapsed in 1987 without renewal, and that the land reverted as unregistered trust land now held by the County Government under Article 63 of the Constitution. Section 41 excludes land vested in county councils from the Limitation of Actions Act, and the land is not registered under the statutes contemplated by Section 37. The court held the Plaintiff had not established a prima facie case with chances of success and dismissed the Notice of Motion with costs on 20th September, 2019.

Key legal issues

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01

Whether the Plaintiff could acquire the suit land (trust land held by the 1st Defendant) by adverse possession

Holding

No. Section 41 of the Limitation of Actions Act excludes land vested in county councils, and by extension county governments, from adverse possession claims; further, unregistered trust land is outside Sections 37 and 38.

Reasoning

The suit land was set apart under the Trust Land Act and, the lease to Katoteni Ranching Society having lapsed in 1987, reverted to the County Council and became unregistered community land held in trust by the County Government under Article 63 of the Constitution. Section 41 excludes land vested in a county council from the Act, so the reliefs of adverse possession are unavailable. The land is also not registered under the Acts cited in Section 37, rendering the claim a non-starter.

p. 4
02

Whether the Plaintiff established a prima facie case for interlocutory injunction

Holding

No. Having failed on the adverse possession claim, no prima facie case with chances of success was established and the Motion was dismissed.

Reasoning

Applying the established interlocutory principles, the Plaintiff had to show a prima facie case with a probability of success. Counsel did not address whether adverse possession could succeed against the 1st Defendant, and the court's analysis of Sections 37, 38 and 41 of the Limitation of Actions Act showed the claim could not succeed. That ground alone justified dismissal of the application with costs.

p. 4

Legal principles established

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  • A claim for adverse possession cannot be sustained against land vested in a County Council or, by extension, a County Government, by virtue of Section 41 of the Limitation of Actions Act.
  • A claim for adverse possession is a non-starter where the land is not registered under any of the registration statutes referred to in Section 37 of the Limitation of Actions Act.

Court orders

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  1. 1.The Notice of Motion dated 17th October, 2018 is dismissed
  2. 2.The Plaintiff to pay costs of the application

Authorities

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Legislation

  • Limitation of Actions ActSections 37, 38(1), 41
  • Trust Land Act (repealed)not specified
  • Government Land Act (repealed)not specified
  • Registration of Titles Act (repealed)not specified
  • Land Titles Act (repealed)not specified
  • Registered Land Act (repealed)Section 120(8)
  • Land Act, 2012not specified
  • Land Registration Act, 2012not specified
  • Mining Act (Cap. 306)not specified
  • Mineral Oil Act (Cap. 307)not specified
  • Water Act (Cap. 372)not specified
  • Government Lands Act (Cap. 280)not specified
  • Constitution of Kenya, 2010Articles 63(1)(iii), 63(3)

Cases cited (1)

  • Francis Kangongo Cheboi vs. Vincent Kiprono Keino & 4 Others
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land claims (originating summons under Section 38(1) of the Limitation of Actions Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwene Munda Welfare Association v Kitui County Government & 2 others [2019] KEELC 1615 (KLR)", Case Analysis (2019). Originating Summons dated 17th October, 2018 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1615/eng@2019-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.