William Kepterer Kirui v Roseline Chepkemoi Ruto [2019] KEELC 4396 (KLR)
The bottom line
#A landowner recovered a small encroached portion in Kericho, but the court refused damages and split no costs because the boundary error wasn't the neighbour's fault.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court over boundary disputes
The Court has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act over boundary disputes, subject to referral to the Registrar under section 18(2) of the Land Registration Act.
The Defendant initially denied jurisdiction but her counsel conceded it in submissions. The court traced jurisdiction to Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, which confers power over disputes relating to boundaries, title and tenure. The court also held that the Ainamoi Land Disputes Tribunal lacked jurisdiction over ownership of registered land under the repealed Act, and its decree could not be implemented as the property had changed hands.
Whether the Defendant encroached on 0.0584 hectares of the Plaintiff's land
Yes, a portion measuring 0.0584 hectares was erroneously included in the Defendant's land, per the District Surveyor's report, but the error dated back to adjudication.
PW2, the District Surveyor Kericho, measured the ground against the Registry Index Map and found the Defendant had encroached by 0.0584 hectares, fenced with tea bushes and mature trees. The Defendant agreed with the surveyor's report but maintained the portion was hers following an adjudication error. The court accepted the survey evidence and found the encroachment was a historical error at adjudication rather than a wrongful act by the Defendant.
Whether the Defendant acquired the disputed portion by adverse possession
No. The limitation period could not run against the Plaintiff before his registration in 2011, and the suit was filed in 2012.
Although the Defendant had been in open, non-consensual, notorious, exclusive and uninterrupted possession for over 12 years, the limitation period ran against the previous registered proprietor, Philomena Cheboen, and not the Plaintiff, who acquired title in 2011 while the Tribunal case was pending. Relying on Francis Gitonga Macharia v Muiruri Waithaka, the court held time for adversity cannot run against a person with no interest in the property.
Whether the Plaintiff was entitled to the reliefs sought
The Plaintiff proved his case on a balance of probabilities and was granted a declaration of proprietorship, rectification of the register, and a permanent injunction; damages were refused as unpleaded and inapposite.
The Plaintiff sought a permanent injunction, costs and any other relief. Counsel argued for damages for trespass, but the court found damages problematic as unpleaded and because the suit was not strictly a trespass suit. Invoking Article 159(2)(d) and the overriding objective, and relying on Odd Jobs v Mubia permitting decision on an unpleaded issue, the court held that a declaration and rectification under section 80(1) of the Land Registration Act were the proper remedies, supplemented by an injunction.
Legal principles established
#- Time for adverse possession cannot run against a registered proprietor before his registration; it runs against the person who holds the proprietary interest.
- A court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision.
- The Environment and Land Court has jurisdiction over boundary disputes save that such cases shall first be referred to the Registrar under section 18(2) of the Land Registration Act.
Court orders
#- 1.A declaration is hereby issued that Plaintiff is the lawful proprietor of 0.0584 hectares erroneously included in the Defendant's land parcel L.R.No.KERICHO/KIPCHIMCHI/1489 but which forms part of L.R.No. KERICHO/KIPCHIMCHIM/930
- 2.The register in respect of land parcels number KERICHO/KIPCHIMCHIM/1489 be rectified to reflect the correct acreage, if need be
- 3.The Land Registrar, Kericho shall amend the said title to reflect correct acreage within 180 days, if need be
- 4.An injunction is hereby issued restraining the Defendant by herself her agents, employees or any other party through whom they may be claiming from interfering with, trespassing or selling, sub-dividing, transferring, assigning, fencing erecting structures thereon and/or doing any other act which prejudicial to the Plaintiff's proprietary interest in L.R.No. KERICHO/KIPCHIMCHIM/930
- 5.Each party shall bear their own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Kepterer Kirui v Roseline Chepkemoi Ruto [2019] KEELC 4396 (KLR)", Case Analysis (2019). Civil Case No 23 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4396/eng@2019-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.