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ELCPartially AllowedLand Case Number 105 of 2016· [2021] KEELC 1236 (KLR)

Cosmas Cherono & 2 others v Veronica Cherono [2021] KEELC 1236 (KLR)

Environment and Land Court of Kenya
3 November 2021
SKS. M. Kibunja
4,493 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave one brother two acres of family land by adverse possession but dismissed his brothers' claims because they couldn't prove they actually lived there.

What this practically means

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Executive summary

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The three plaintiffs, brothers within the family of the late Bartore Cherono, brought an Originating Summons under Section 38 of the Limitation of Actions Act, Order 37 Rule 7 of the Civil Procedure Rules and Section 28 of the Land Registration Act against the defendant, the widow of their late brother Joseph Rutto Cherono, the registered proprietor of parcel Keiyo/Marakwet/Irong/Kapkonga/117. They claimed the defendant held the estate of Bartore Cherono in trust, that their occupation of over 60 years had extinguished her interest by adverse possession, sought a declaration of title to 5.5 acres, partition among beneficiaries, and a permanent injunction. The defendant asserted the land always belonged to her late husband, that the 1st plaintiff's mother had merely been settled on a two acres portion out of charity, and that the other plaintiffs never lived on the land. The court framed three issues: adverse possession, constructive trust, and costs. Relying on a Deputy Registrar's site visit and the parties' evidence, it found only the 1st plaintiff in actual occupation; his occupation was initially permissive but became adverse after his mother's death, entitling him to the two acres portion. The constructive trust claim failed for want of proof that the land was ancestral land, the plaintiffs being unable even to fix the date of their father's death. The 2nd and 3rd plaintiffs' suit was dismissed; the 1st plaintiff was declared owner of the two acres, with subdivision and transfer directed within six months and each party bearing their own costs.

Key legal issues

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01

Whether the plaintiffs established adverse possession of the suit property

Holding

Only the 1st plaintiff proved adverse possession, and only over the two acres portion occupied by his late mother; the 2nd and 3rd plaintiffs failed to establish actual possession

Reasoning

A site visit established only the 1st plaintiff occupied a portion of the land. His initial occupation was permissive, granted by the late Joseph Rutto Cherono to his mother. However, after his mother's death his continued occupation was without permission and became adverse. Pending suits by the defendant did not amount to interruption absent determinations or eviction orders. The 2nd and 3rd plaintiffs could not demonstrate what portions they occupied.

02

Whether the suit property was held in constructive/customary trust for the plaintiffs

Holding

The claim of constructive trust failed; the plaintiffs did not prove the land was ancestral land or that a trust was intended

Reasoning

Customary trust must be proved by evidence, and the claimant must show the land was family or clan land before registration, the relationship to the family, entitlement to registration but for intervening circumstances, and a claim against a registered proprietor who is a family member. The plaintiffs could not even agree on the year their father died, leaving doubt whether instructions to hold the land in trust were ever given. Burials on the land were shown to be with the owner's consent.

p. 5
03

Whether the registered proprietor held the two acres portion in trust for the 1st plaintiff's mother

Holding

The court found that settling the 1st plaintiff's mother on the two acres showed an intention that she own it, and the registered proprietor held that portion in trust for her

Reasoning

The late Joseph Rutto Cherono brought the 1st plaintiff's mother from her parents' home and settled her on a two acres portion, building her a house, which she used exclusively and uninterrupted with his permission until her death. The court inferred an intention that she own it, and that the registered proprietor continued to hold the portion in trust for her, which benefit the 1st plaintiff who continued in occupation now enjoys.

p. 5
04

Who should bear the costs of the suit

Holding

Each party to bear their own costs despite the normal rule under Section 27 of the Civil Procedure Act

Reasoning

Although the 1st plaintiff and the defendant would ordinarily be entitled to costs for successfully prosecuting and defending the suit respectively, the court considered their close family relationships and held this an appropriate case for each party to bear their own costs.

p. 5

Legal principles established

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  • A claimant seeking title by adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption
  • Possession under adverse possession must be nec vi, nec clam, nec precario - without force, secrecy or permission
  • Customary law trust is a question of fact which must be proved by leading evidence by whoever claims a right under it
  • Courts will not imply a trust save in order to give effect to the intention of the parties; the intention to create a trust must be clearly determined before a trust is implied

Court orders

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  1. 1.The 2nd and 3rd plaintiffs' suit against the defendant is dismissed for failure to prove their case on a balance of probabilities
  2. 2.The 1st plaintiff, Cosmas Cherono, is declared the owner of the two acres portion of the suit land where his late mother was settled by the late Joseph Rutto Cherono
  3. 3.The defendant is directed to apply for and obtain the necessary consents to subdivide and transfer the two acres of the suit land to the 1st plaintiff within six months, failing which the Deputy Registrar of the court is authorized to sign all such documents on behalf of the defendant
  4. 4.Each party to bear his/her own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure Rules, 2010Order 37 Rule 7
  • Land Registration Act No. 3 of 2012Section 28(b), (e) and (h)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27

Cases cited (14)

  • Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 Others
    [2018] eKLR
  • Wambugu v Njuguna
    (1983) KLR 173
  • Mbira –v- Gachuhi
    (2002) IEALR 137
  • Jandu –v- Kirplal & Another
    (1975) EA 225
  • Mtana Lewa –v- Kahindi Ngala Mwangandi
    (2005) eKLR
  • Muchambindwiga & Another v Octavian Mwaniki Kariuki
    [2021] eKLR
  • Gabriel Mbui Vs Mukindia Maranya
    [1993] eKLR
  • Alice Wairimu Macharia v Kirigo Philip Macharia
    [2019] eKLR
  • Njenga Chogera –vs- Maria Wanjira Kimani & 2 Others
    [2005] eKLR
  • Muthuita –vs- Muthuita
    [1982 – 88] 1 KLR 42
  • Isack Kieba M’Inanga Vs Isaaya Theuri M’Lintari & Another
    SCoK No 10 of 2015
  • Kiarie v. Kinuthia
  • Peter Ndungu Njenga vs. Sophia Watiri Ndungu
    [2000] eKLR
  • Juletabi African Adventure Limited & Another v Christopher Michael Lockley
    [2017] eKLR
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap 22), Order 37 Rule 7 of the Civil Procedure Rules 2010, and Sections 28(b), (e) and (h) of the Land Registration Act No. 3 of 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Cosmas Cherono & 2 others v Veronica Cherono [2021] KEELC 1236 (KLR)", Case Analysis (2021). Land Case Number 105 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1236/eng@2021-11-03

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