Simion Kimagut Biwott & another v Zakaria Kemeli Koima [2019] KEELC 2357 (KLR)
The bottom line
#A Kenyan land buyer who occupies land and pays for it over 12 years can win ownership outright, even against later registered owners.
What this practically means
#Executive summary
#Key legal issues
#When time for adverse possession began to run
Time began to run from 4th December 1997 when the last payment of the purchase price was acknowledged and the defendant took possession; the defendant acquired title by December 2009
Following Public Trustee v Wanduru, adverse possession is computed from the date of payment of the purchase price where the purchaser takes possession, since from that date the true owner is dispossessed. An acknowledgment of payments received (D-exh 1b) showed payment up to 4th December 1997, so twelve years expired around December 2009, well before the 2015 originating summons.
Whether the eviction order in Eldoret Misc. Civil Application No. 71 of 2006 interrupted continuous possession
No - the order lacked particulars of the suit land and was defective, so it did not stop time running
Relying on Githu v Ndete and Lazaro Kabebe v Ndege Makau, interruption occurs when the owner takes legal proceedings or makes effective entry. However, the eviction order did not identify the parcel from which eviction was ordered. Without the underlying proceedings establishing a nexus between the parties, the order and the suit land, the order could not be enforced and did not amount to an effective assertion of right interrupting possession.
Whether the plaintiffs are the rightful proprietors notwithstanding registered title
No - the defendant's adverse possession rights had accrued before registration, and the plaintiffs failed to prove they were bonafide purchasers for value
Section 25 indefeasibility of title does not defeat accrued adverse possession rights. Applying the Katende v Haridas threshold for a bonafide purchaser, the plaintiffs knew of the dispute concerning the alleged eviction and disputed ownership, so the vendor lacked apparent good title and the plaintiffs could not rely on the bonafide purchaser doctrine.
Legal principles established
#- Adverse possession is calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser takes possession
- Time under the Limitation of Actions Act ceases to run when the owner takes or asserts his right, and assertion occurs when the owner takes legal proceedings or makes an effective entry
- An eviction order that does not contain the specifics of the parcel of land is defective and cannot amount to an interruption of adverse possession
- Registered title does not override rights accrued by adverse possession; a vendor whose title has been extinguished cannot pass good title
- A purchaser who is aware of a dispute over ownership cannot qualify as a bonafide purchaser for value without notice
Court orders
#- 1.Declaration that Zacharia Kimeli Koima, the defendant, has obtained title by way of adverse possession over the whole of land reference 9930/14 having been in uninterrupted possession since 1996
- 2.Declaration that the plaintiffs' title over land reference number 9930/14 has been extinguished by dint of adverse possession under the Limitation of Actions Act
- 3.A vesting order be registered in land reference number 9930/14 in favour of the defendant, Zacharia Kimeli Koima
- 4.The plaintiffs to pay the costs of the suit
- 5.Plaintiffs' claim dismissed
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over title and adverse possession claims to land reference 9930/14; consolidated suits under the plaint dated 29th September 2015 and Originating Summons in ELC No. 427 of 2015
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.
- Okumu (Suing as the administrator of the Estate of Bonface Okumu Opondo - the Deceased) v Onyango & 5 others[2022] KEELC 13602 (KLR)13 Oct 2022
Cite this brief
#Cite this brief
Caselaw, "Simion Kimagut Biwott & another v Zakaria Kemeli Koima [2019] KEELC 2357 (KLR)", Case Analysis (2019). Eldoret Environment and Land Court Civil Suit (consolidated with ELC Civil Suit No. 427 of 2015 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2357/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.