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ELCStruck OutOriginating Summons dated 3.6.2019· [2020] KEELC 600 (KLR)

Jeremiah Oino v Robinah Kerubo (Sued as the Administrator of the Estate of Thomas Ongubo) [2020] KEELC 600 (KLR)

Environment and Land Court
3 November 2020
JOJ. M. ONYANGO
1,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot acquire council or public land in Kenya by adverse possession, so such claims will be struck out.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii disposes of a preliminary objection dated 2nd June 2020 raised by the Defendant in a suit commenced by Originating Summons under section 32 of the Limitation of Actions Act and Order 38 Rule 7 of the Civil Procedure Rules 2010. The Plaintiff sought to have the Defendant's title over Daraja Mbili Market Plot No. 1A extinguished and to be registered as proprietor by adverse possession. The Defendant, holding the property through succession from her father-in-law, who had been allocated the plot by the defunct Kisii Municipal Council, objected that the property is public land incapable of being acquired by adverse possession. The court framed one issue: whether the suit property is public land and, if so, whether it can be litigated by way of adverse possession. Applying Article 62 of the Constitution and section 41 of the Limitation of Actions Act, the court held that the property is public land registered under the repealed Government Lands Act and administered by the defunct municipal council; the Defendant holds only a plot card, title remains in the council's name, and time cannot run. Following Francis Kangogo Cheboi v Vincent Kaino, the court held that adverse possession cannot be claimed over land vested in a county council. Upholding the preliminary objection, the court struck out the Originating Summons in its entirety and ordered each party to bear their own costs.

Key legal issues

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01

Whether public land vested in a county/municipal council can be acquired by adverse possession

Holding

No. Section 41 of the Limitation of Actions Act excludes land vested in a county council, so an adverse possession claim over such land is misconceived and unsustainable.

Reasoning

Article 62 of the Constitution classifies the suit property as public land, which vests in the county government. Section 41 of the Limitation of Actions Act expressly excludes land vested in county councils from its operation. The Plaintiff therefore cannot claim the reliefs under that Act, including adverse possession. The court relied on Francis Kangogo Cheboi v Vincent Kaino. The Originating Summons was struck out in its entirety.

p. 2

Legal principles established

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  • A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • Time does not run against a holder of a plot card where title remains in the name of the municipal council
  • The Limitation of Actions Act does not permit acquisition of title by adverse possession to public land vested in a county council

Court orders

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  1. 1.The Preliminary Objection dated 2nd June 2020 is upheld
  2. 2.The Plaintiff's Originating Summons dated 3.6.2019 is struck out in its entirety
  3. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 62(1)(b), 62(2)
  • Limitation of Actions ActSection 32, Section 41
  • Civil Procedure Rules 2010Order 38 Rule 7
  • Government Lands Act (repealed)
  • Registered Land Act (repealed)Section 120(8)
  • Mining Act
  • Mineral Oil Act
  • Water Act

Cases cited (3)

  • Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd
    1969 EA 696
  • Francis Kangogo Cheboi v Vincent Kaino & 4 Others
    (2013) eKLR
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others
    (2015) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit; preliminary objection under the law on preliminary objections

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, "Jeremiah Oino v Robinah Kerubo (Sued as the Administrator of the Estate of Thomas Ongubo) [2020] KEELC 600 (KLR)", Case Analysis (2020). Originating Summons dated 3.6.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/600/eng@2020-11-03

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