David K. Tanui & another v James Kigen Koikirok & another [2019] KEELC 3845 (KLR)
The bottom line
#A Kenyan court ruled that a church that occupied land openly for over 12 years legally owned it, even against a later registered title holder.
What this practically means
#Executive summary
#Key legal issues
#Ingredients of adverse possession
The claimant must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory 12-year period without interruption
The court applied settled authority requiring exclusive, open, continuous and peaceful possession for 12 years. It found the 2nd plaintiff (church) had occupied since 2006, exceeding 12 years, openly and without the defendants' permission, evidenced by a church building erected on the suit parcels.
Effect of subdivision and change of parcel description
Subdivision and change of parcel number did not interrupt the plaintiffs' possession
Relying on Githu v Ndeete, the court held that the parcel bought (No. 188) being later subdivided into Nos. 324 and 327 did not interrupt adverse possession. The mutation form of 4th August 2003 linked the original parcel to the resultant plots, so possession of the original continued to run against the proprietor.
Rights of the 2nd defendant as subsequent registered proprietor
The 2nd defendant took subject to the plaintiffs' adverse possession rights and acquired no superior rights
Following Francis Mungai Kimani v Ngendo Kibogoro, the court held the 2nd defendant acquired only the same rights as the 1st defendant. He never took possession and did not claim his rights; his remedy, if any, lies against the 1st defendant for a refund, which is not before the court.
Credibility of the 1st defendant's defence
The 1st defendant's claim that he owed the 1st plaintiff money was an afterthought and his evidence was not candid
The 1st defendant denied the sale in his affidavit but introduced in evidence a claim that the 1st plaintiff was his doctor to whom he owed Kshs. 40,000. This was not pleaded in the replying affidavit, and he could not explain why he allowed the church to build on land he had not sold. The court discredited his evidence.
Legal principles established
#- Subdivision or change of parcel number does not interrupt possession for adverse possession purposes
- A subsequent registered proprietor takes subject to accrued adverse possession rights
Court orders
#- 1.That the 2nd plaintiff be registered as the sole indefeasible proprietor of the parcel Nos. LEMBUS/SINONIN/324 AND 327
- 2.That the County Land Registrar Baringo do enter the name of AFRICAN INLAND CHURCH SOGEON as the proprietor of land parcel No LEMBUS/SINONIN/324 AND 327
- 3.That land title deed No. LEMBUS/SINONIN/324 issued to the 2nd defendant is hereby revoked and the same be issued to the 2nd plaintiff
- 4.That the defendants to pay costs of the suit to the plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcels LEMBUS/SINONIN/324 and 327 by way of originating summons
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.
- Grace Wairimu Githinji & 3 others v Karau Ole Shonge & another [2019] KEELC 1425 (KLR)[2019] KEELC 1425 (KLR)9 Oct 2019
Cite this brief
#Cite this brief
Caselaw, "David K. Tanui & another v James Kigen Koikirok & another [2019] KEELC 3845 (KLR)", Case Analysis (2019). Originating Summons filed 21st January 2015 (Eldoret ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3845/eng@2019-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.