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ELCPartially AllowedCivil Case No 23 of 2012· [2019] KEELC 4396 (KLR)

William Kepterer Kirui v Roseline Chepkemoi Ruto [2019] KEELC 4396 (KLR)

Environment and Land Court of Kenya
28 February 2019
3,435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff, registered proprietor of L.R No. KERICHO/KIPCHIMCHIM/930 since 2011, sued the Defendant, owner of the adjoining parcel KERICHO/KIPCHIMCHIM/1489, seeking a permanent injunction over an encroachment measuring 0.0584 hectares identified by the District Surveyor, Kericho. The Defendant denied encroachment, asserting the disputed portion was excluded from her title during land adjudication, that the Ainamoi Land Disputes Tribunal had settled the boundary (decree issued 7.11.2011), and that she had acquired the portion by adverse possession through occupation since 1969, evidenced by tea-plucking receipts from Tegat Tea Factory. The court framed four issues: jurisdiction, encroachment, adverse possession, and entitlement to the reliefs sought. On jurisdiction, the Court found authority under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, holding the Tribunal lacked jurisdiction over ownership of registered land. On the survey evidence, the court found the 0.0584-hectare portion was erroneously included in the Defendant's land at adjudication. The adverse possession claim failed because the limitation period ran against the previous registered proprietor and not the Plaintiff, who acquired title in 2011, the suit having been filed in 2012. The court refused damages as unpleaded and because the suit was not strictly a trespass claim, but invoked Article 159(2)(d), section 80(1) of the Land Registration Act and Odd Jobs v Mubia to grant substantive justice: a declaration that the Plaintiff owns the 0.0584 hectares, rectification of the register within 180 days if need be, and a permanent injunction. Each party was ordered to bear their own costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over boundary disputes

Holding

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.

Reasoning

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.

p. 3
02

Whether the Defendant encroached on 0.0584 hectares of the Plaintiff's land

Holding

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.

Reasoning

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.

p. 3
03

Whether the Defendant acquired the disputed portion by adverse possession

Holding

No. The limitation period could not run against the Plaintiff before his registration in 2011, and the suit was filed in 2012.

Reasoning

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.

p. 4
04

Whether the Plaintiff was entitled to the reliefs sought

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The register in respect of land parcels number KERICHO/KIPCHIMCHIM/1489 be rectified to reflect the correct acreage, if need be
  3. 3.The Land Registrar, Kericho shall amend the said title to reflect correct acreage within 180 days, if need be
  4. 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. 5.Each party shall bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 159(2)(d)
  • Environment and Land Court ActSection 13
  • Land Registration ActSection 18(2)
  • Land Registration ActSection 80(1)
  • Limitation of Actions ActSection 7
  • Civil Procedure ActOverriding objective
  • Land Disputes Tribunal Act (repealed)Not specified

Cases cited (9)

  • Mbira V. Gachuhi
    (2002) 1 EALR 137
  • Jandu v Kirplal and Another
    (1975) EA 225
  • Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another
    [2015] eKLR
  • Kasuve v Mwaani Investments Limited & 4 others
    [2004] 1KLR 184
  • Wanje v Saikwa
  • Samuel Miki Waweru v Jane Njeri Richu
    Civil Appeal No. 122 of 2001, (UR)
  • Peter Gichuki Wanjohi V Julia Mumbi Muturi
    (2017) eKLR
  • Francis Gitonga Macharia V Muiruri Waithaka
    Civil Appeal No 110 of 1997
  • Odd Jobs v. Mubia
    1970 EA 476
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "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.