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ELCPartially AllowedNot stated in the judgment (Eldoret ELC, plaint filed 13th January 2017)· [2019] KEELC 3865 (KLR)

Jennifer Kobilo Kandie v James Ondiek [2019] KEELC 3865 (KLR)

Environment and Land Court
9 April 2019
4,431 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A landowner who waited nearly 20 years to sue lost her Eldoret plot to a buyer who had occupied it for over 12 years.

What this practically means

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Executive summary

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By a plaint dated 13th January 2017 the plaintiff, the registered owner since 23rd October 2014 of parcel ELDORET/MUNICIPALITY BLOCK 15 (WEST FARMERS) 1712, sought a permanent injunction restraining the defendant from occupying, encroaching on or interfering with the land, plus costs. The defendant filed a defence and counterclaim seeking dismissal of the suit and a declaration that the parcel belongs to him, registration as proprietor, and an injunction against the plaintiff. The plaintiff testified that she held an indefeasible title under section 26 of the Land Registration Act; her husband (PW2) denied selling the land. The defendant testified that he bought the land from PW2, the area Chief, in 1998, occupying it for over 19 years; his witnesses (a village elder, the IDP chairman, an assistant elder and a former squatter) corroborated his purchase, possession, and loss of houses in the 2007/2008 post-election violence. The court framed six issues. It held the plaintiff did not prove procedural acquisition of her title, as she was not a member of Eldoret West Farmers Limited, the land having been gifted to PW2 as Chief; the defendant's evidence established the sale to him; and the defendant had been in adverse occupation for over 12 years, extinguishing the plaintiff's title under the Limitation of Actions Act. The court followed Gulam Mariam Noordin v Julius Charo Karisa in holding that adverse possession may be raised in a defence and counterclaim. The plaintiff's suit was dismissed with costs; the counterclaim was allowed with a declaration of the defendant's ownership, an order for cancellation of the plaintiff's registration, registration of the defendant, and a permanent injunction against the plaintiff.

Key legal issues

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01

Whether the plaintiff proved procedural acquisition of her title

Holding

The plaintiff did not prove that she acquired the title procedurally; she was not a member of Eldoret West Farmers Limited and produced no share certificate or payment receipts

Reasoning

The land belonged to Eldoret West Farmers Company Limited which allocated plots to members. The plaintiff and her husband PW2 were not members; PW2 was given the plot as a gift as area chief. The plaintiff produced a title deed and search but no share certificate or payment receipts. The court held the process of acquisition must be procedural and, the land being disputed and occupied by the defendant, her title could be impeached under sections 26 and 80(1) of the Land Registration Act.

p. 4
02

Whether the defendant bought the suit land from PW2

Holding

The defendant's evidence and that of his witnesses established that PW2 sold the suit land to the defendant

Reasoning

The list of plot owners in Eldoret West Farmers Ltd bore the defendant's name; PW2's letter dated 4th October 2007 supporting water and electricity connection confirmed the sale; elders' minutes of 11th January 2017 attended by PW2 confirmed the land was gifted to PW2 and sold to the defendant; DW5 testified PW2 introduced the defendant as the new owner. The payment instalments and the destroyed sale agreement were accepted.

p. 4
03

Whether the plaintiff's claim was time barred and the defendant entitled to be registered as proprietor

Holding

The plaintiff's suit was time barred; the defendant, in occupation for over 12 years since 1999, acquired title by adverse possession and is entitled to be registered as owner

Reasoning

The defendant took possession in 1998/1999 and remained in occupation for over 19 years without interruption, developing the land and being recognised by the IDP reconstruction process. Under section 7 of the Limitation of Actions Act the plaintiff could not recover land after 12 years; her title was extinguished by section 17, and section 38 permits the adverse possessor to seek registration. The court found the plaintiff acquired her 2014 title unprocedurally and the claim, filed in 2017, failed.

p. 5
04

Whether adverse possession can be claimed in a defence and counterclaim

Holding

Yes - a defendant may raise limitation and adverse possession by way of defence and counterclaim

Reasoning

Relying on Gulam Mariam Noordin v Julius Charo Karisa and the authorities cited therein (Wabala v Okumu; Bayete Co. Ltd v Kosgey), the court held that a party sued for vacant possession may raise a defence of statute of limitation by defence or defence and counterclaim; originating summons under Order 37 Rule 7 is required only where a party applies to be registered as proprietor by adverse possession, and that procedure is unsuitable for complex factual disputes.

p. 5

Legal principles established

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  • A registered owner may not bring an action to recover land after twelve years from accrual of the right of action, and the title is extinguished at the expiry of that period
  • A defendant may raise limitation and adverse possession by way of defence and counterclaim rather than by originating summons
  • Indefeasibility of title under the Land Registration Act is prima facie only; a title acquired fraudulently, illegally or unprocedurally can be impeached and the register rectified

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the defendant
  2. 2.A declaration that parcel No. ELDORET MUNICIPALITY BLOCK 15 (WEST FARMERS) 1712 belongs to the defendant, who is entitled to be registered as such
  3. 3.The Land Registrar is directed to revoke and cancel the parcel registered in the plaintiff's name and register it in the defendant's name
  4. 4.A permanent injunction restraining the plaintiff from interfering with the defendant's quiet possession of parcel No. ELDORET MUNICIPALITY BLOCK 15 (WEST FARMERS) 1712
  5. 5.The plaintiff to pay costs of the counterclaim

Authorities

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Legislation

  • Land Registration Actsection 26
  • Land Registration Act, 2012section 80(1)
  • Repealed Act Cap 281 Laws of Kenya (Registration of Titles Act)section 23(1)
  • Limitation of Actions Act Cap 22 Laws of Kenyasections 5, 6, 7, 13 and 17
  • Limitation of Actions Actsection 38
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (5)

  • Lawrence Muiruri Njuguna -vs- Charles Mwenga Mulwa
    Muranga ELC NO. 45 of 2017
  • Willy Kimutai Kitilit -Vs- Michael Kibet
    Eldoret Court of Appeal Civil Appeal No. 51 of 2015
  • Gulam Mariam Noordin v Julius Charo Karisa
    Civil Appeal No 26 of 2015
  • Wabala v Okumu
    [1997] LLR 609 (CAK)
  • Bayete Co. Ltd v Kosgey
    [1998] LLR 813
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land (plaint dated 13th January 2017 and defence and counterclaim dated 21st February 2017)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jennifer Kobilo Kandie v James Ondiek [2019] KEELC 3865 (KLR)", Case Analysis (2019). Not stated in the judgment (Eldoret ELC, plaint filed 13th January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3865/eng@2019-04-09

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