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ELCDismissedOriginating Summons dated 5th June 2013· [2020] KEELC 1042 (KLR)

Musa Cheruiyot Chepkurui v Julia Kaptuya Chirchir [2020] KEELC 1042 (KLR)

Environment and Land Court
30 July 2020
MOM. A. ODENY
2,173 words in judgment
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The bottom line

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The Eldoret Environment and Land Court dismissed a man's adverse possession claim because the buyer he sold land to was clearly the one in possession.

What this practically means

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Executive summary

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By originating summons dated 5th June 2013, the plaintiff sought a declaration that he had acquired title to land reference Baringo/Kewamoi 'A'/1157 and its resultant parcels 3381, 3382, 3383 and 3384 through adverse possession, claiming occupation since September 1987 after the land was transferred to the defendant without her taking possession. The defendant responded that she purchased the parcel from the plaintiff in 1987, paid the full purchase price, obtained Land Control Board consent signed by the plaintiff, was transferred the land and issued title, and built structures on it. At trial, the plaintiff testified he had fenced, built on and cultivated the land; his witness confirmed he resided at Kapropita. He admitted being charged with malicious damage to property in Kabarnet Criminal Case No. 57 of 2015 for demolishing structures on the land and being put on probation for two years. The defendant produced title, search certificate, green card, transfer and consent documents and testified her worker resided on the land. Applying the ingredients of adverse possession drawn from Wambugu v. Njuguna and Munyaka Kuna Company Limited, the court found the evidence showed the respondent took possession upon purchase, transfer and sub-division, and that the plaintiff's conviction for damaging her structures demonstrated her possession - he could not have maliciously damaged his own property. The court held the applicant failed to meet the threshold for adverse possession and dismissed the originating summons with costs to the defendant on 30th July 2020.

Key legal issues

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01

Whether the applicant proved the ingredients of adverse possession

Holding

The applicant failed to prove adverse possession; the respondent was in possession having purchased the land, obtained consent and title, and the applicant's demolition of her structures demonstrated her possession

Reasoning

The court applied the four ingredients from Munyaka Kuna: factual possession, animus possidendi, use nec vi nec clam nec precario for twelve years, knowledge of the owner and continuous possession. The applicant's own witness confirmed he resides at Kapropita. His conviction and probation for maliciously damaging the respondent's structures on the land showed the respondent, not he, was in possession. The applicant had sold the land, signed consent and transfer forms, and could not resile from that sale.

p. 3

Legal principles established

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  • To establish adverse possession a litigant must prove factual possession and intention to possess, use of the land without force, secrecy or persuasion for twelve years, knowledge of the registered owner, and continuous uninterrupted possession
  • Adverse possession requires proof of possession and discontinuance of possession by the title holder for the statutory period

Court orders

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  1. 1.The originating summons seeking a declaration of adverse possession is dismissed
  2. 2.The plaintiff to pay the defendant's costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 37

Cases cited (4)

  • Paul Kiptenai K. Birach v. Nandiko Lukhombea & anor
    (2015) eKLR
  • Wambugu v. Njuguna
    (1983) KLR 173
  • Mbira v. Gachuhi
    (2002) EALR 137
  • Munyaka Kuna Company Limited v. Bernado Vicezo De Masi (The Administrator of The Estate of Domenico De Masi (Deceased)
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction under section 37 of the Limitation of Actions Act (application to the High Court for an order that the applicant be registered as proprietor by adverse possession)

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, "Musa Cheruiyot Chepkurui v Julia Kaptuya Chirchir [2020] KEELC 1042 (KLR)", Case Analysis (2020). Originating Summons dated 5th June 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1042/eng@2020-07-30

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