Simion Kipsang Yator & 7 others v Joshua Kipsonoji Sumukwo [2020] KEELC 3018 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petition met the threshold of a constitutional petition
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)
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.
Whether the petitioners acquired the suit land by adverse possession
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
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.
Whether the petitioners were entitled to special damages for destroyed trees, crops and fences
No; the claim was not specifically pleaded with details nor strictly proved
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.
Legal principles established
#- 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
#- 1.The petition is dismissed
- 2.Costs of the petition awarded to the respondent
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gaitho & 203 others v Utheri wa Lari Company Limited & another (Land Case 77 of 2016) [2023] KEELC 98 (KLR)[2023] KEELC 98 (KLR)19 Jan 2023followed
Cite this brief
#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.