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ELCDismissedNot stated in the judgment as provided· [2019] KEELC 3674 (KLR)

Abma Investments Limited v Sarah Tumno [2019] KEELC 3674 (KLR)

Environment and Land Court of Kenya
12 April 2019
2,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Even a valid land title cannot beat a 12-year clock: a Kenyan landowner lost an eviction case because they sued too late.

What this practically means

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Executive summary

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Abma Investments Ltd sued Sara Tumno seeking a permanent injunction, eviction, mesne profits, damages, costs and interest in respect of Uasin Gishu/Burnt Forest/47, which it purchased from Aaron Kimosop Kandie on 28 January 1998 and obtained title to on 19 April 1999. The plaintiff alleged the defendant, daughter of the vendor's caretaker Joseph Kipkurui Tumno, was allowed to remain temporarily so her school-going children could complete the academic year but thereafter refused to vacate, trespassing by tilling, erecting structures, fencing and felling trees. The defendant denied trespass and pleaded lawful occupation of one acre since 1978, contending the plaintiff's title was questionable and that her occupation had ripened into adverse possession under the Limitation of Actions Act. The court framed four issues: proof of ownership, rights of a registered proprietor, entitlement to damages/mesne profits, and adverse possession. It found the plaintiff had proved ownership, the title being unchallenged by evidence of fraud or illegality under sections 24, 25 and 26 of the Land Registration Act, and that the plaintiff would ordinarily be entitled to mesne profits. However, the defendant had occupied the one acre openly, hostilely and uninterruptedly for over forty years, without proved permission and without any agreement with the plaintiff. The court held the plaintiff's claim was statute barred, brought more than twelve years after title was obtained, and noted a likelihood that adverse rights had arisen against the vendor's title. The suit was dismissed with costs.

Key legal issues

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01

Whether the plaintiff proved ownership of the suit property

Holding

Yes - the plaintiff proved ownership through the sale agreement of 28 January 1998 and the title deed issued 19 April 1999, with no evidence of fraud or illegality

Reasoning

The plaintiff produced the sale agreement showing purchase of Uasin Gishu/Burnt Forest/47 for Kshs. 7,000,000 and an original title deed. Under section 26 of the Land Registration Act, a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, illegality or corruption. No such evidence was adduced by the defendant, so ownership was proved to the required standard.

p. 3
02

Whether the defendant acquired rights by adverse possession

Holding

Yes - the defendant had been in open, hostile and uninterrupted occupation of one acre for more than 12 years before the suit, defeating the plaintiff's claim as time barred

Reasoning

The defendant was in occupation of the one acre when the plaintiff purchased the land and had occupied it for over 40 years since 1978, well beyond the 12-year limitation period in section 7 of the Limitation of Actions Act. There was no permission from Aaron Kandie proved and no agreement allowing the defendant to live on the land. Occupation was exclusive, open, hostile and uninterrupted against both the vendor and the plaintiff, so the claim to recover land was statute barred.

p. 4
03

Whether the plaintiff is entitled to mesne profits and damages

Holding

The claim failed because the suit was time barred; the court did not award mesne profits despite stating the principle

Reasoning

The court set out the definition of mesne profits in section 2 of the Civil Procedure Act and Order 21 Rule 13 of the Civil Procedure Rules, and cited the Court of Appeal decision in Attorney General v Halal Meat Products Limited on entitlement to mesne profits. However, since the claim to recover the land was statute barred, the plaintiff's ancillary claims for mesne profits and damages could not succeed and the entire suit was dismissed.

p. 4

Legal principles established

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  • A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner, challengeable only on grounds of fraud, misrepresentation, illegality, unprocedurality or corrupt scheme (section 26, Land Registration Act)
  • An action to recover land may not be brought after twelve years from the date the right of action accrued (section 7, Limitation of Actions Act)
  • A person wrongfully deprived of property is entitled to damages known as mesne profits for the period of wrongful occupation

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs
  2. 2.The defendant's occupation found to be adverse, open, hostile and uninterrupted against both Aaron Kandie and the plaintiff

Authorities

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Legislation

  • Land Registration Act, No. 3 of 2012section 24
  • Land Registration Act, No. 3 of 2012section 25
  • Land Registration Act, No. 3 of 2012section 26
  • Limitation of Actions Act, Cap 22, Laws of Kenyasection 7
  • Limitation of Actions Act, Cap 22, Laws of Kenyasection 13
  • Limitation of Actions Act, Cap 22, Laws of Kenyasection 37
  • Limitation of Actions Act, Cap 22, Laws of Kenyasection 38
  • Civil Procedure Act, Cap 21, Laws of Kenyasection 2
  • Civil Procedure Rules, 2010Order 21 Rule 13

Cases cited (1)

  • Attorney General -vs- Halal Meat Products Limited
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (statutory basis not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Abma Investments Limited v Sarah Tumno [2019] KEELC 3674 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3674/eng@2019-04-12

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