Industrial & Commercial Development Co-operation v Reuben arap Simotwo & 20 others [2019] KEELC 1647 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that land owned by a state corporation is public land and cannot be claimed through long occupation.
What this practically means
#Executive summary
#Key legal issues
#Whether a state corporation's land is protected from adverse possession under section 41 of the Limitation of Actions Act
Yes. Although the plaintiff is not among the former East African corporations defined as 'the corporations' in section 2 of the Act, the suit property is public land under Article 62(1)(b) of the Constitution because it is lawfully held by a state organ, and section 41 shields government land from adverse possession.
The court noted that section 41 excludes 'Government land or land otherwise enjoyed by the Government' from the Limitation of Actions Act. The defendants argued the plaintiff, a state corporation, is not listed among 'the corporations' in section 2 and so is not 'the Government'. The court rejected a narrow statutory reading, turning instead to Article 61 and 62(1)(b) of the Constitution, which classify as public land any land lawfully held, used or occupied by a State organ. Article 260 defines a State organ to include a body established under the Constitution, and the court held that a state corporation, 'as a vehicle of government', fits that description.
Whether the defendants established entitlement to the suit property by adverse possession
No. Having found that section 41 protects the suit property, the court held the defendants' counterclaim for adverse possession could not stand notwithstanding over 12 years of occupation agreed on by consent.
The parties had consented that the defendants or their predecessors had been in occupation for over 12 years at the filing of the suit, which would ordinarily extinguish title. However, because the land is government/public land protected by section 41, the limitation period could not run against the plaintiff. The court's finding on the first issue 'also disposes of the second issue'. The defendants also called no witness and tendered no evidence in support of their counterclaim.
Whether the plaintiff, as registered proprietor, is entitled to injunction and eviction
Yes. As registered proprietor the plaintiff enjoys the rights of a proprietor under section 25 of the Land Registration Act and was entitled to a permanent injunction and an eviction order.
The court relied on section 25(1) of the Land Registration Act, which makes the rights of a proprietor not liable to be defeated except as provided in the Act. Since the adverse possession defence and counterclaim had failed, nothing defeated the plaintiff's title. The plaintiff had also invoked Articles 40(1), 2(a) and 60(1)(b) of the Constitution and sections 24 and 26 of the Land Registration Act, and the defendants tendered no evidence to displace the registered title.
Legal principles established
#- Land lawfully held, used or occupied by a state corporation as a vehicle/agency of government constitutes public land under Article 62(1)(b) of the Constitution and is therefore government land protected by section 41 of the Limitation of Actions Act from acquisition by adverse possession
- Where section 41 of the Limitation of Actions Act applies, no title by adverse possession can accrue against the protected land and the burden of proving adverse possession lies on the adverse possessor
Court orders
#- 1.A permanent injunction restraining the defendants, their servants and agents from encroaching, trespassing, entering, constructing upon, remaining on and disposing or dealing or in any other way interfering with the plaintiff's quiet and peaceful occupation of LR No. 498/1085, Eldama Ravine
- 2.The defendants, their agents and/or servants to vacate LR No. 498/1085 within 30 days from the date of delivery of the judgment; in default, an eviction order to issue against the defendants, their families and or agents or assigns
- 3.Costs of the suit to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land LR No. 498/1085 situate in Baringo County; claim founded on the Land Registration Act and the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Industrial & Commercial Development Co-operation v Reuben arap Simotwo & 20 others [2019] KEELC 1647 (KLR)", Case Analysis (2019). not stated in the judgment (plaint filed 15th November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1647/eng@2019-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.