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ELCDismissedELC NO. 6 OF 2019· [2020] KEELC 2734 (KLR)

Rodah Chepkoech Koech v Belgut Enterprises Limited & another [2020] KEELC 2734 (KLR)

Environment and Land Court
6 May 2020
AKA. K. Kaniaru
2,645 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a woman's claim to own land through long occupation because she entered by gift, not against the owner's permission.

What this practically means

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Executive summary

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The plaintiff, sister of the late Kipngeno Ngeny (a director/shareholder of the 1st defendant company), claimed ownership of land parcel KERICHO/KAPSOIT/1855 by adverse possession, asserting she was gifted the land in 1995 and occupied, fenced and cultivated it openly until January 2019, when Kipchimchim Enterprises Limited, a lessee of the registered owner, forcibly entered and destroyed her structures. She sought a declaration of ownership, registration as proprietor, and injunctive relief. The defendants denied the gift, asserted the company was in actual possession, and contended her use was intermittent and that possession by consent of a relative cannot be adverse. The court held that the plaintiff's entry was permissive (by gift) and that she failed to show when her possession became adverse, stressing that permissive possession can never mature into adverse possession no matter how long it lasts. It also held that adverse possession requires public and notorious possession that cannot be proved by the claimant's testimony alone; the plaintiff called no corroborating witnesses, and the defendants rebutted her evidence. Further, her request in submissions for compensation for developments was unpleaded and could not be granted as it would ambush the defendants. On a balance of probabilities the claim failed. The court dismissed the suit and, mindful that the dispute was between close family members, ordered each party to bear its own costs.

Key legal issues

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01

Proof of adverse possession and the requisite character of possession

Holding

Adverse possession requires non-permissive, actual, open, exclusive, notorious and continuous possession hostile to the true owner for 12 years; the plaintiff failed to prove it

Reasoning

The court defined adverse possession per Mtana Lewa v Kahindi Ngala Mwangandi and Mbira v Sachuhi, emphasizing nec vi, nec clam, nec precario. The plaintiff entered by gift from her brother, making her entry permissive, and she never demonstrated when possession turned adverse. She was also no longer on the land, having been ousted before filing suit, and she called no corroborating witnesses despite pleading open and notorious possession known to neighbours and relatives.

p. 2
02

Evidentiary burden where allegations are denied

Holding

The alleging party must do more than the denying party; the plaintiff's word alone against the defendants' rebuttal did not discharge her burden

Reasoning

The defendants faulted the plaintiff for closing her case without a corroborating witness. The court agreed, holding that a denied fact is not proved unless the alleging party brings more credible evidence. Since adverse possession must be public and notorious, the claimant's own testimony could not show that the surrounding world was aware of her possession; her sister, brothers and neighbours, whom she said were aware, were not called.

p. 2
03

Relief sought only in submissions (compensation/damages)

Holding

Damages/compensation for developments could not be awarded as it was not pleaded

Reasoning

The plaintiff, realizing her ouster might defeat her claim, urged in submissions that she be awarded pecuniary compensation for developments. The court held pleadings guide the court; unpleaded relief cannot be granted because the other side has had no chance to controvert or rebut it, and raising it in submissions amounts to ambushing the defendant.

p. 3

Legal principles established

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  • A person in permissive possession (e.g. by gift or licence) must show when possession became adverse; permissive possession can never mature into adverse possession
  • A party alleging a fact must adduce more than the denying party's evidence to prove it; adverse possession, requiring publicity and notoriety, cannot be proved by the claimant's testimony alone
  • Courts cannot grant relief not pleaded; raising compensation in submissions only is an ambush

Court orders

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  1. 1.The plaintiff's originating summons claiming adverse possession is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Land Act2012
  • Limitation of Actions ActCap 22

Cases cited (7)

  • KAHINDI NGAL MWANGANDI VS. MTANA LEWA
    (2014)eKLR
  • CELINA MUTHONI KITHINJI VS SAFIYA BINTI SWALEY & 8 OTHERS
    (2018)eKLR
  • KARANTIMU RAIJI VS M. MAKINYA
    (2013)eKLR
  • JOHN NGUNYU KIPSOI VS SAMWEL CHEPKULUL
    ELC NO 502/2017, NYAHURURU
  • MTANA LEWA VS KAHINDI NGALA MWANGANDI
    (2005)eKLR
  • MBIRA VS SACHUHI
    (2002) I EALR 137
  • KWEYU VS OMUTO
    (1990) KLR 709
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over claims of ownership and title to land (adverse possession claim by originating summons)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rodah Chepkoech Koech v Belgut Enterprises Limited & another [2020] KEELC 2734 (KLR)", Case Analysis (2020). ELC NO. 6 OF 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2734/eng@2020-05-06

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