Kigen Kandie v Ruth Chemuren [2019] KEELC 3249 (KLR)
The bottom line
#A Kericho court gave a land buyer the five plots his late mother purchased, but refused to hand them over through adverse possession because possession under a sale agreement doesn't count.
What this practically means
#Executive summary
#Key legal issues
#Identification of the plots purchased under the 1996 and 2009 agreements
The plots purchased were KERICHO/CHESINENDE/446, 447, 448, 449 and 450, not the plot earmarked for a filling station.
Neither the 1996 nor the 2009 agreement referenced the filling-station plot, though it was delineated on the map used at the time of sale. The filling-station plot does not comprise five plots measuring 50ft by 100ft, contrary to the terms of the agreements. The plaintiff's own supporting affidavit annexed register extracts for parcels 446-450, confirming the identity of the plots purchased.
Whether possession of the disputed plot was taken
The plaintiff fenced not the purchased plots but the filling-station plot, and did so under police supervision, which was inconsistent with peaceful possession of the purchased plots.
The evidence of PW2 and the defence witnesses showed the fencing of the plot earmarked for the petrol station was done under tight security. The court reasoned that fencing one's own purchased plots would not ordinarily require such conditions, undermining the plaintiff's claim of possession.
Validity of the sale agreement for want of Land Control Board consent
The sale is null and void for want of Land Control Board consent under section 6 of the Land Control Act, though the defendant's indicated willingness to transfer keeps the option open.
The land sold was agricultural land subject to land control consent. No consent was obtained and the land remained registered in the vendor's name, rendering the transaction void under section 6(1) of the Land Control Act. However, the defendant's stated willingness to transfer the five purchased plots preserved a route to completion.
Whether the plaintiff acquired title by adverse possession
No: as a purchaser in possession under a subsisting contract of sale, the plaintiff's occupation is permissive and cannot be adverse unless the contract is first repudiated.
Relying on Wilson Kazungu Katana, Samuel Miki Waweru, Sisto Wambugu and Wambo v Njuguna, the court held that possession under a sale agreement does not become adverse. Occupation with the owner's permission or in accordance with a sale agreement cannot coexist with adverse possession; time does not run until the contract is repudiated. The plaintiff never established repudiation of the sale.
Legal principles established
#- A sale, transfer or other dealing with agricultural land within a land control area without Land Control Board consent is void for all purposes under section 6(1) of the Land Control Act.
- A purchaser in possession under a contract of sale cannot claim adverse possession unless the contract of sale has first been repudiated; possession under such an agreement is permissive, not adverse.
Court orders
#- 1.A declaration is hereby issued that the Plaintiff is entitled to 5 plots out of Title No. KERICHO/KIPKELION/CHESINENDE/133 that is to say title numbers KERICHO/CHESINENDE/446, 447, 448 449 and 450.
- 2.The time within which consent of the Land Control Board should be granted in respect of the sub-division and/or transfer of the 5 plots is extended by 90 days.
- 3.The Defendant is ordered to sign the necessary documents to effect a valid transfer of the land in favour of the Plaintiff and in default the Executive Officer of the court to do so.
- 4.The costs of this suit shall be borne by the Plaintiff.
- Jurisdiction invoked
- First-instance jurisdiction of the High Court/Environment and Land Court under section 38 of the Limitation of Actions Act (claim for declaration of adverse possession) and the Land Control Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kigen Kandie v Ruth Chemuren [2019] KEELC 3249 (KLR)", Case Analysis (2019). Originating Summons dated 26th November 2009 (Amended 8th April 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3249/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.