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ELCAllowedELC Case No. 732 of 2012 (formerly Civil Suit No. 113 of 2011 (O.S))· [2019] KEELC 4952 (KLR)

Emily Maina & another v Eliud K. Kitur [2019] KEELC 4952 (KLR)

Environment and Land Court of Kenya
24 January 2019
1,175 words in judgment
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The bottom line

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A Kenyan family who openly occupied and farmed 0.9 acres for decades won ownership by adverse possession, extinguishing the registered owner's title.

What this practically means

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Executive summary

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The 1st and 2nd Applicants, Emily Maina and Jepkurgat Maina, brought an originating summons dated 4th July 2011 under Order 37 Rule 7 of the Civil Procedure Rules seeking a declaration that they had acquired 0.9 acres (pleaded in the summons as 1 acre) out of Title No. Nandi/Kokwet/559 by adverse possession since 1968, that the Respondent's title had been extinguished by lapse of time, and that they be registered as proprietors. They also claimed the Respondent held the portion in trust for them. The Respondent neither entered appearance nor filed a response despite service, and was absent at trial, so only the Applicants testified, with one supporting witness. Their evidence was that their late husband purchased 0.9 acres from Jelagat Tapletgoi around 1970, took possession, cultivated the land, planted trees and fodder grass, built residential houses and resided there. The court framed three issues: adverse possession, entitlement to reliefs, and costs. Restating the elements from the cited authorities, the court found uncontroverted and unchallenged evidence of open, peaceful and uninterrupted occupation since the 1970s that was neither forcible nor secretive, satisfying all elements of adverse possession. The Respondent's title to the occupied portion was declared extinguished by operation of law under the Limitation of Actions Act (Cap 22), and the Applicants were declared entitled to be registered as proprietors of the 0.9 acres under section 38. The Deputy Registrar was directed to execute the necessary transfer documents for the absent Respondent. Although costs ordinarily follow the event, the court directed each party to bear their own costs given the Respondent's non-participation. Judgment delivered at Eldoret on 24th January 2019 by Y.M. Angima, Judge.

Key legal issues

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01

Whether the Applicants proved adverse possession over 0.9 acres of the suit property

Holding

The Applicants satisfied all elements of adverse possession, having been in open, peaceful and uninterrupted possession of 0.9 acres since the 1970s

Reasoning

The evidence was uncontroverted: the Respondent neither entered appearance nor filed a response and did not attend trial. The Applicants testified with one witness that they purchased 0.9 acres around 1970, took possession, cultivated it, planted trees and fodder grass, and erected residential houses. Their occupation was never suggested to be forcible, secretive or with the owner's consent. Applying the requirements in the cited authorities, the court found the 12-year period had run against the registered owner.

p. 2
02

Whether the Applicants are entitled to the reliefs sought, including extinction of the Respondent's title and registration

Holding

The Respondent's title to the 0.9 acres in occupation by the Applicants was extinguished by operation of law and the Applicants are entitled to be registered as proprietors

Reasoning

Once adverse possession for the statutory period was established, the registered owner's title to the portion in occupation was extinguished under the Limitation of Actions Act (Cap 22). Under section 38, the court granted the declaration that the Applicants had become entitled to be registered as proprietors of the 0.9 acres, and facilitated registration by having the Deputy Registrar execute the necessary documents for the absent Respondent.

p. 2
03

Who shall bear the costs of the suit

Holding

Each party to bear his own costs

Reasoning

Although costs normally follow the event under section 27 of the Civil Procedure Act, as confirmed in Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, the court exercised its discretion to depart from the general rule because the Respondent did not file a response to the originating summons and did not attend court for the trial. Accordingly, each party was directed to bear their own costs despite the Applicants' success.

p. 2

Legal principles established

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  • To be entitled to land by adverse possession the claimant must prove exclusive, open possession as of right and without interruption for 12 years, and such title may be acquired for part of the land
  • Costs follow the event unless the court for good reason directs otherwise

Court orders

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  1. 1.Declared that the Respondent's title to a portion of 0.9 acres out of Title No. Nandi/Kokwet/559 has become extinguished by operation of law under the Limitation of Actions Act (Cap 22)
  2. 2.Declared that the Applicants have become entitled to be registered and shall be registered as proprietors of a portion of 0.9 acres out of Title No. Nandi/Kokwet/559 on account of adverse possession under section 38 of the Limitation of Actions Act (Cap 22)
  3. 3.The Deputy Registrar of the court shall sign and execute all necessary forms, documents and papers on behalf of the Respondent to facilitate registration of the Applicants as proprietors of 0.9 acres out of the suit property
  4. 4.Each party shall bear his own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7 (1) (2) & (3)
  • Limitation of Actions Actsection 38 (Cap 22)
  • Civil Procedure Actsection 27 (Cap 21)

Cases cited (6)

  • Wambugu Vs Njuguna
    [1983] KLR 172
  • Githu Vs Ndeete
    [1984] KLR 776
  • Kasuve Vs Mwaani Investments Ltd & 4 Others
    [2004] 1KLR 184
  • Kimani Ruchine Vs Swift Rutherfords & Co Ltd
    [1980] KLR 10
  • Wanja Vs Saikwa No. 2
    [1984] KLR 284
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Order 37 Rule 7 (1) (2) & (3) of the Civil Procedure Rules; section 38 of the Limitation of Actions Act (Cap 22)

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, "Emily Maina & another v Eliud K. Kitur [2019] KEELC 4952 (KLR)", Case Analysis (2019). ELC Case No. 732 of 2012 (formerly Civil Suit No. 113 of 2011 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4952/eng@2019-01-24

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