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ELCDismissedPetition dated 11th April 2017 (number not stated in judgment)· [2020] KEELC 3018 (KLR)

Simion Kipsang Yator & 7 others v Joshua Kipsonoji Sumukwo [2020] KEELC 3018 (KLR)

Environment and Land Court
23 April 2020
4,082 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Nine Baringo families lost their land case because they never identified the exact land they claimed and filed a poorly drafted petition.

What this practically means

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Executive summary

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The petitioners, representatives of nine families of the Okondo Community in Kapluk Sub-Location, Baringo County, petitioned for a declaration that they owned the suit land through adverse possession as community land, conservatory orders restraining the respondent from interfering with the land, eviction and vacant possession, and special damages for destroyed trees, crops and fences. They alleged that the respondent invaded the land in 2010–2011, cutting trees and burning houses, and relied on an earlier criminal conviction (Kabarnet Criminal Case No. 413 of 2012) and proceedings before the National Land Commission recommending his eviction. The respondent denied the claims, asserting occupation since 1970 on land belonging to his grandfather, and argued that the petition failed the constitutional threshold, that adverse possession cannot lie over unsurveyed, unregistered land, that adjudication mechanisms under the Land Adjudication Act had not been exhausted, and that special damages were neither pleaded nor proved. The court framed three issues: competency of the petition, entitlement to adverse possession, and entitlement to special damages. Applying Anarita Karimi Njeru, Mumo Matemu and Rule 10(2) of the Mutunga Rules, it held the petition defective for failing to cite violated constitutional provisions, a defect not curable under Article 159(2)(d). On adverse possession, relying on Wambugu v Njuguna, Mbira v Gachuhi, Kimani Ruchine and Kasuve v Mwaani, it held the land unsurveyed and unregistered with no identified acreage and no registered owner to dispossess. The special damages claim also failed for want of specific pleading and strict proof. The petition was dismissed with costs to the respondent on 23rd April 2020.

Key legal issues

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01

Whether the petition met the threshold of a constitutional petition

Holding

It did not; the petitioners failed to cite the constitutional provisions allegedly violated or the manner of infringement, as required by Anarita Karimi Njeru and Rule 10(2) of the Mutunga Rules, and the defect could not be cured by Article 159(2)(d)

Reasoning

Relying on Anarita Karimi Njeru and Mumo Matemu, the court held that a petition must set out with reasonable precision the facts, the provisions infringed and the manner of infringement, as required by Rule 10(2) of the Protection of Rights and Procedure Rules, 2013. The petitioners cited no violated provisions. Because the threshold goes to the root of what is to be adjudicated, the Article 159(2)(d) overriding-objective savings could not cure the defect, which is substantive rather than a mere technicality.

p. 5
02

Whether the petitioners acquired the suit land by adverse possession

Holding

No; the land is unsurveyed, undemarcated, unadjudicated and unregistered, the petitioners did not identify the acreage claimed, and the respondent is not the registered owner, so there is nothing to adjudicate

Reasoning

Applying Wambugu v Njuguna, Mbira v Gachuhi, Kimani Ruchine and Kasuve v Mwaani, the court held that adverse possession requires proof of exclusive, open, adverse occupation of a definite and distinct portion for the statutory period. The suit land's specifications were undefined and there was no registered title to dispossess. A claim of adverse possession cannot be advanced on a non-existing, unsurveyed and unregistered title.

p. 5
03

Whether the petitioners were entitled to special damages for destroyed trees, crops and fences

Holding

No; the claim was not specifically pleaded with details nor strictly proved

Reasoning

Citing Coast Bus Service Limited v Murunga and the authorities therein (Kampala City Council v Nakaye, Ouma v Nairobi City Council, Eldama Ravine Distributors v Chebon, quoting Ratcliffe v Evans), the court reaffirmed that each particular type of special damage must be pleaded with the degree of certainty and particularity reasonable in the circumstances, and then strictly proved. The petitioners did neither, so the claim failed.

p. 6

Legal principles established

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  • Non-compliance with the mandatory threshold requirements for a constitutional petition is not a curable procedural technicality under Article 159(2)(d)
  • A party invoking constitutional protection of property rights must first establish a proprietary right or interest in land
  • A claim of adverse possession cannot lie over unsurveyed, unregistered land and requires identification of a definite and distinct portion
  • Special damages must be specifically pleaded and strictly proved

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs of the petition awarded to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 19, 20, 21, 22, 23, 40, 60, 63(1) and 159(2)(d)
  • Community Land ActSection 7
  • Land Adjudication Act (Cap 284)Section 30
  • National Land Commission ActSection 5(2)(e)
  • Limitation of Actions ActSection 38(1)
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure Rules, 2010Order 37 Rule 7(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 10(2)

Cases cited (16)

  • Republic Versus Commissioner of Lands and 4 others ex-parte Associates Steel Limited
    High Court at Nairobi Misc. Civil Suits No. 273 of 2007 (2014)
  • Kahindi Ngala Mwagandi vs Mtana Lewa
    (2014) eKLR
  • European Court of Human Rights (JA Pye) (Oxford) Ltd vs United Kingdom
    (2005) BHRC 705
  • Anarita Karimi Njeru vs Republic
    (1979) eKLR
  • Anarita Karimi Njeru vs Attorney General
    Petition No. 1 of 1979, 1 KLR 154
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR
  • Serah Mweru Muhu v Commissioner of Lands & 2 others
    [2014] eKLR
  • Wambugu –v- Njuguna
    (1983) KLR 173
  • Mbira –v- Gachuhi
    (2002) 1EALR 137
  • Kimani Ruchine & Another vs Swift Rutherford Co. Ltd & Another
    (KLR)
  • Kasuve vs Mwaani Investments Limited & Others
    (2004) 1 EA
  • Coast Bus Service Limited v Murunga & Others
    Nairobi CA No. 192 of 1992
  • Kampala City Council vs Nakaye
    [1972] EA 446
  • Ouma v Nairobi City Council
    [1976] KLR 297
  • Eldama Ravine Distributors Limited and another v Chebon
    Civil Appeal Number 22 of 1991 (UR)
  • Ratcliffe v Evans
    [1892] QB 524
Jurisdiction invoked
Constitution of Kenya 2010, Articles 2, 19, 20, 21, 22, 23, 40 and 60 (invoked by petitioners) with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Simion Kipsang Yator & 7 others v Joshua Kipsonoji Sumukwo [2020] KEELC 3018 (KLR)", Case Analysis (2020). Petition dated 11th April 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3018/eng@2020-04-23

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