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ELCDismissedCivil Suit No. 180 of 2010 (re-allocated number upon transfer to Environment and Land Court)· [2019] KEELC 3295 (KLR)

David Kipkosgei Kimeli v Titus Barmasai [2019] KEELC 3295 (KLR)

Environment and Land Court
13 May 2019
MOM.A. Odeny
2,707 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret court dismissed a man's claim to land he'd occupied for years because the owner had allowed him to stay.

What this practically means

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Executive summary

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The plaintiff sued by originating summons dated 2 December 2010 (originally High Court Civil Suit No. 180 of 2010, transferred to the Environment and Land Court) seeking declarations that 4.3 hectares of parcel Uasin Gishu/Kipkabus Settlement Scheme/47 had devolved to him by adverse possession, alternatively that the defendant held the title in trust for him, and a mandatory injunction compelling the District Land Registrar to register him as owner. He alleged occupation since 1967. The defendant, registered owner since 7 February 1995 after purchasing from Kipchumba Samuel Kipkapto, contended that the plaintiff entered the land in October 2000 with his permission, that he asked the plaintiff to vacate in 2008, and he counterclaimed for eviction. The court applied the settled test for adverse possession, requiring exclusive, open, non-permissive and continuous occupation for at least 12 years. It found the plaintiff's evidence contradictory as to when he entered the land, PW2's evidence contradictory, and DW3's evidence of constructing and demolishing two houses inconsistent with the scene visit report showing no sign of a homestead. Crucially, the defendant had permitted the plaintiff to use the land, destroying the hostile character of the possession. The court held the plaintiff had not met the threshold, dismissed his suit with costs, allowed the counterclaim, and ordered the plaintiff to give vacant possession within 30 days failing which eviction orders would issue. Judgment delivered at Eldoret on 13 May 2019.

Key legal issues

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01

Whether the plaintiff acquired title to the suit land by adverse possession

Holding

The claim failed; the plaintiff did not prove exclusive, open, hostile and uninterrupted occupation for 12 years, and his occupation was permissive

Reasoning

The court found the plaintiff's evidence contradictory on when he entered the land (1967 vs 2000), PW2's evidence contradicted his, and DW3's evidence of building and demolishing two houses on the land clashed with the scene visit report showing no sign of a homestead. The defendant admitted allowing the plaintiff to use the land, defeating hostility of possession. All four ingredients of adverse possession were unproved.

p. 3
02

Whether the defendant is entitled to the orders sought in the counterclaim

Holding

The counterclaim was allowed; the plaintiff was ordered to give vacant possession within 30 days failing which eviction orders would issue

Reasoning

The defendant was the registered owner of the suit land, having purchased it from DW2 and obtained title on 7 February 1995. The plaintiff's occupation was permissive and amounted to trespass once the defendant asked him to vacate in 2008. The court dismissed the plaintiff's suit and allowed the counterclaim with costs.

p. 4

Legal principles established

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  • A claimant seeking title by adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption
  • To acquire title by limitation against land with a known owner, the owner must have been dispossessed or must have discontinued possession for a continuous period of 12 years
  • A person who occupies land with the owner's consent cannot claim adverse possession

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the defendant
  2. 2.The plaintiff to give vacant possession of the suit land within 30 days failure of which eviction orders to issue

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Environment and Land Court ActSection 13
  • Land ActSection 150
  • Land Registration ActSection 101
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)
  • Evidence ActSections 107, 108 and 109
  • Constitution of KenyaArticle 40

Cases cited (6)

  • Mbira v. Gachuhi
    (2002) IEALR 137
  • Wanja & Ors v. A.K Saika & Ors
    (1984)
  • Margret Wangui Njugi & 2 Ors V. George Kimani & Anor
    [2019] eKLR
  • Wambugu v. Njuguna
    (1983) KLR 174
  • Chevron (K) Ltd v. Harrison Charo Wa Shutu
    [2016] eKLR
  • Adnam v Earl of Sandwich
    (1877) 2QB 485
Jurisdiction invoked
Section 13 of the Environment and Land Court Act as read with section 150 of the Land Act and section 101 of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Kipkosgei Kimeli v Titus Barmasai [2019] KEELC 3295 (KLR)", Case Analysis (2019). Civil Suit No. 180 of 2010 (re-allocated number upon transfer to Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3295/eng@2019-05-13

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