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ELCPartially AllowedNot stated in the judgment (plaint dated 2/3/2015, filed 3/3/2015)· [2019] KEELC 2296 (KLR)
Joseph Krop Terer & 2 others v Benson Kong’olekwang [2019] KEELC 2296 (KLR)
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·~9 min to read original · ~4 min briefThe bottom line
#A Kenyan landowner who waits over 12 years to reclaim land from someone openly occupying it loses the land to that occupier.
What this practically means
#Executive summary
#The plaintiffs, registered proprietors of West Pokot/Kisaunet/147 (37.0 hectares) since 19/11/1979, sued for a declaration of exclusive possession, vacant possession, general damages for trespass, and costs, alleging the defendant wrongfully occupied the land. The defendant filed a defence and counterclaim asserting his father had purchased the land from the plaintiffs' uncle in 1978, that his family had occupied it openly and without interruption since then, and that he had therefore acquired title by adverse possession; he sought registration as proprietor and a permanent injunction. The court framed two issues: whether the defendant should be declared proprietor by adverse possession, and what orders should issue. On the evidence, the court found the defendant's father entered the land in 1979, that no dispute occurred after 1979, and that the plaintiffs never lived on or attempted to recover the land. Section 7 of the Limitation of Actions Act barred the plaintiffs' claim 12 years after registration. Possession was peaceful, open and uninterrupted (nec vi, nec clam, nec precario). The court dismissed the plaintiffs' suit, allowed the counterclaim, declared the defendant entitled to be registered as proprietor by adverse possession, ordered cancellation of the plaintiffs' title and registration of the defendant, issued a permanent injunction against the plaintiffs, and awarded the defendant costs of both the suit and counterclaim. Judgment was delivered at Kitale on 18 July 2019 by Mwangi Njoroge, Judge.
Key legal issues
#01
Whether the defendant acquired title by adverse possession
Holding
Yes - possession by the defendant's father since 1979 was peaceful, open and uninterrupted for over 12 years, barring the plaintiffs' claim under Section 7 of the Limitation of Actions Act
Reasoning
The plaintiffs were registered on 19/11/1979 but never took possession or attempted eviction. The last dispute over the land was in 1979. Twelve years elapsed without recovery of possession, so the plaintiffs are caught by the limitation doctrine. The defendant's occupation was nec vi, nec clam, nec precario, entitling him to be registered as proprietor.
p. 3
Legal principles established
#- A registered proprietor who fails to recover possession of land within 12 years of registration is barred by Section 7 of the Limitation of Actions Act, and a defendant in peaceful, open and uninterrupted possession acquires title by adverse possession
Court orders
#- 1.The plaintiffs' suit is dismissed with costs
- 2.The defendant's counterclaim succeed
- 3.A declaration that the defendant is entitled to be registered as the proprietor of the suit land by virtue of the doctrine of adverse possession
- 4.An order directing the cancellation of the title in the names of the plaintiffs and registration of the defendant as the proprietor of the suit land
- 5.An order of permanent injunction restraining the plaintiffs from interfering with the defendant's quiet possession of the suit land
- 6.The plaintiff shall bear the costs of both the suit and the counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land in West Pokot County (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Krop Terer & 2 others v Benson Kong’olekwang [2019] KEELC 2296 (KLR)", Case Analysis (2019). Not stated in the judgment (plaint dated 2/3/2015, filed 3/3/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2296/eng@2019-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.