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ELCPartially AllowedELC No. 348 of 2014 (Consolidated with ELC No. 398 of 2017)· [2020] KEELC 1009 (KLR)

Jared Kiprotich Biwott & another v Jonathan Kibe [2020] KEELC 1009 (KLR)

Environment and Land Court
5 August 2020
4,716 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Eldoret Land Court confirmed a registered title holder's ownership and ordered an encroaching occupier to vacate, rejecting his 12-year adverse possession claim.

What this practically means

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Executive summary

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This first-instance decision of the Environment and Land Court at Eldoret concerned consolidated suits between Stephen Cheruiyot and Another (plaintiffs) and Jonathan Kibe (defendant) over parcel L.R. No. 498/923 at Eldama Ravine. The plaintiffs, registered proprietors holding a 99-year leasehold title issued in 1998, sued by plaint dated 18th November 2014 seeking a declaration of trespass, eviction, a permanent injunction and costs. The defendant, who claimed occupation since 1969, filed a defence and counterclaim seeking a declaration that he had acquired the land by adverse possession, and also instituted ELC No. 398 of 2017 by Originating Summons, which was consolidated with the lead file. At trial, the plaintiffs produced a certified copy of title, a demand notice and correspondence with the Baringo County Government, testifying that the defendant encroached in 2013 after a government directive on road reserves. The defendant and his witnesses asserted occupation since 1969, cultivation, and structures over 20 years old. The court held the plaintiffs' title indefeasible under Sections 24, 25 and 26(1) of the Land Registration Act, no fraud or illegality having been pleaded. On adverse possession, the court found the defendant had not proved continuous, open, hostile possession for 12 years, the limitation period having begun only upon the plaintiffs' registration in 1998, with encroachment in 2013 and suit in 2014. The plaintiffs' suit was allowed as prayed and the counterclaim dismissed, with a declaration of trespass, vacant possession within 45 days failing which eviction would issue, a permanent injunction, and costs to the plaintiffs.

Key legal issues

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01

Whether the plaintiffs are the rightful registered owners of parcel L.R. No. 498/923

Holding

Yes. The plaintiffs produced a certified copy of title issued in 1998 and there was no challenge to the manner of acquisition of the title, so the title is indefeasible and protected by law.

Reasoning

The court applied Sections 24, 25 and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and make the certificate of title prima facie evidence of indefeasible ownership, subject only to challenge for fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme. No such challenge was made against the plaintiffs' title, which was issued upon allocation in 1998. The court found the plaintiffs entitled to the protection of the law as rightful owners.

p. 5
02

Whether the defendant acquired title to the suit land by adverse possession

Holding

No. The defendant failed to prove continuous, open and uninterrupted occupation for at least 12 years; the evidence showed the plaintiffs were allocated the land in 1998 and the defendant encroached only in 2013, with the suit filed in 2014.

Reasoning

The court set out the doctrine under Sections 7, 13, 37 and 38 of the Limitation of Actions Act and restated the requirement that possession be 'nec vi, nec clam, nec precario' — peaceful, open and continuous — and hostile to the true owner's rights over the statutory period of 12 years. Applying the evidence, the plaintiffs were allocated the suit land in 1998 and the defendant encroached in 2013, prompting a report to the Assistant chief and the 2014 suit. The requisite 12 years had not run, so the adverse possession claim failed.

p. 6

Legal principles established

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  • A certificate of title is prima facie evidence that the person named as proprietor is the absolute and indefeasible owner, and may only be challenged on the ground of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme.
  • The limitation period for adverse possession only starts running after registration of the land in the name of the registered owner, and a claimant must prove peaceful, open and continuous possession for not less than 12 years with acts hostile to the true owner's rights.

Court orders

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  1. 1.A declaration is hereby issued that the Defendant is a trespasser on Parcel Number L.R.No.498/923
  2. 2.An order for the defendant to give vacant possession within 45 days failure to which eviction order to issue
  3. 3.Permanent injunction is hereby issued against the Defendant barring him from interfering or in any manner dealing with the said land or any portion thereof
  4. 4.Costs of the suit to the plaintiffs

Authorities

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Legislation

  • Land Registration ActSection 24(1)/24(a)
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Act (Cap 22, Laws of Kenya)Section 7
  • Limitation of Actions Act (Cap 22, Laws of Kenya)Section 13
  • Limitation of Actions Act (Cap 22, Laws of Kenya)Section 17
  • Limitation of Actions Act (Cap 22, Laws of Kenya)Section 37
  • Limitation of Actions Act (Cap 22, Laws of Kenya)Section 38
  • Government Lands Act (repealed)Cap 280
  • Registered Land Act (repealed)Cap 300
  • Registration of Titles Act (repealed)referenced in Section 37
  • Land Titles Act (repealed)referenced in Section 37

Cases cited (12)

  • Gabriel Mbui v Mukindia Maranya
    [1993]eKLR
  • Ravindranath Dahybhai Bhagat v Hamisi Herod & 5 others
    [2014]eKLR
  • Mbira –vs- Gachuhi
    2002 1 EALR 137
  • Maliamu Ncurubi M’ibiri V Francis M’imanyara M’ringera
    [2011]eKLR, Meru High Court Civil Case No. 80 of 2002
  • Simon Kibe Mwangi & 4 others v Thika Garissa Road Developers Ltd & 5 others
    [2019]eKLR, ELC 279 of 2017 consolidated with Thika ELC 212/17
  • Salka Developers Limited vs Mary Aoko Omondi
    (2018)eKLR, Eldoret ELC 259 of 2015
  • Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Ruth Wangari Kanyagia –vs- Josephine Muthoni Kinyanjui
    [2017] eKLR
  • Kamataka Board of Wakf –vs- Government of India & Others
    [2004] 10 SCC 779
  • Wilson Kazungu Katana and 101 others =vs= Salim Bakshwei and another
    Malindi CA No. 11 of 2014
  • Francis Gitonga Macharia =vs= Muiruri Waithaka
    Civil Appeal No. 110 of 1997
  • Titus Kigoro Munyi =vs= Peter Mburu Kirnani
    Nyeri Court of Appeal Civil Appeal No. 28 of 2014
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land and environment disputes)

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, "Jared Kiprotich Biwott & another v Jonathan Kibe [2020] KEELC 1009 (KLR)", Case Analysis (2020). ELC No. 348 of 2014 (Consolidated with ELC No. 398 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1009/eng@2020-08-05

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