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ELCDismissedELC Case No. 111 of 2013 (formerly HCC 178 of 2012 (O.S))· [2019] KEELC 4999 (KLR)

Christian Wafula Omusolo & 2 others v Pauline Jerotich & another [2019] KEELC 4999 (KLR)

Environment and Land Court of Kenya at Eldoret
24 January 2019
1,884 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Land Court dismissed an adverse possession claim because the land had no registered owner, so the 12-year clock never started.

What this practically means

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Executive summary

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Three applicants brought an originating summons dated 15th August 2012 under Order 37 of the Civil Procedure Rules, the Limitation of Actions Act and the Law of Succession Act, claiming they had purchased various portions of Plot No. 107 Kimumu Settlement Scheme from the deceased original owner, Kimining Arap Kibuigut, between 1989 and 2000, and seeking recognition of their interests as purchasers and by adverse possession, including registration of their shares and amendment of the certificate of confirmation of grant in Eldoret High Court Succession Cause No. 204 of 2011. The respondents took out letters of administration but neither filed a response nor participated in the trial; the applicants' unchallenged evidence was given by the 1st and 3rd applicants. The court confined itself to matters within its jurisdiction under the Limitation of Actions Act, leaving the alleged non-disclosure in the succession cause to that court. Although the applicants' entry and possession were undisputed, the court held that time for adverse possession runs only from the date of first registration. The official search showed the respondents were registered as proprietors only on 29th March 2016, meaning the land was unregistered when the suit was filed in 2012, and the applicants failed to file the certified land register directed by the court. The claim for adverse possession and the reliefs accordingly failed, and the originating summons was dismissed with an order that each party bear their own costs, given the respondents' non-participation.

Key legal issues

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01

Whether the Applicants proved adverse possession

Holding

Not proved - occupation for at least 12 years from the date of registration was not demonstrated because the land was unregistered when the suit was filed

Reasoning

The court accepted the Applicants purchased and took possession of portions between 1989 and 2000 without interruption. However, adverse possession time runs only from first registration in the name of someone other than the claimant. The official search showed the Respondents were only registered on 29th March 2016; in 2012, when the suit was filed, the land was unregistered. The Applicants also failed to file the certified land register directed by the court. Following Wilson Kazungu Katana, the claim failed.

p. 3
02

Whether the Applicants were entitled to the reliefs sought

Holding

Not entitled, having failed to prove adverse possession

Reasoning

Since the foundational claim of adverse possession failed, none of the reliefs premised on it - registration of shares, amendment of the certificate of confirmation of grant, or facilitation of transfer - could issue. The court also declined to determine issues concerning non-disclosure in the succession cause, confining itself to matters within the Environment and Land Court's jurisdiction under the Limitation of Actions Act.

p. 3
03

Who bears the costs of the suit

Holding

Each party to bear own costs, despite the general rule that costs follow the event

Reasoning

Although section 27 of the Civil Procedure Act prescribes that costs follow the event, the court exercised its discretion to depart from that rule because the Respondents neither filed a response to the originating summons nor participated in the trial. The successful parties took no steps to defend the claim, justifying an order that each party bear their own costs.

p. 3

Legal principles established

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  • Time for adverse possession cannot begin to run unless and until the land has a registered owner; possession must be reckoned from the date of first registration
  • A claimant must prove exclusive, open, uninterrupted possession as of right for 12 years after dispossession or discontinuation of the owner's possession; part of land can be acquired by adverse possession
  • Failure to annex a certified copy of the title under Order 37 Rule 7 is not necessarily fatal; the court may allow it to be filed in the course of proceedings
  • Costs follow the event unless the court, for good reason, directs otherwise

Court orders

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  1. 1.The originating summons dated 15th August 2012 is dismissed
  2. 2.Parties shall bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rules 1, 3, 6 and 7
  • Limitation of Actions Act (Cap 22)sections 27 and 38
  • Law of Succession Act (Cap 160)section 71
  • Civil Procedure Act (Cap 21)section 27

Cases cited (7)

  • Wambugu Vs Njuguna
    [1983] KLR 172
  • Githu Vs Ndeete
    [1984] KLR 776
  • Kasuve Vs Mwaani Investments Ltd & 4 Others
    [2004] 1 KLR 184
  • Kimani Ruchine Vs Swift Rutherfords & Co Ltd
    [1980] KLR 10
  • Wanja Vs Sakwa No. 2
    [1984] KLR 284
  • Wilson Kazungu Katana & 101 Others Vs Salim Abdallah Bakswein & Another
    [2015] eKLR
  • Hussein Janmohamed & Sons Ltd Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Order 37 Rules 1, 3, 6 and 7 of the Civil Procedure Rules, sections 27 and 38 of the Limitation of Actions Act (Cap 22), confined to matters within the Environment and Land Court's jurisdiction

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, "Christian Wafula Omusolo & 2 others v Pauline Jerotich & another [2019] KEELC 4999 (KLR)", Case Analysis (2019). ELC Case No. 111 of 2013 (formerly HCC 178 of 2012 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4999/eng@2019-01-24

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