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ELCPartially Allowed· [2021] KEELC 1677 (KLR)

Richard Namin Kipsoi & 2 others v Eliud Emojong & anotther [2021] KEELC 1677 (KLR)

Environment and Land Court
21 September 2021
BOBoaz N. Olao
5,757 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Bungoma court ruled that a family who openly occupied land for over 40 years legally owned it, defeating the registered title holders' eviction attempt.

What this practically means

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Executive summary

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This was an original land suit before the Environment and Land Court at Bungoma. The plaintiffs, children of the late Kipsoi Ngeiywo Namudogo, registered as proprietors of parcel NO NORTH MALAKISI/WEST SASURI/96 in 2000 by transmission, sued the defendants for eviction and a permanent injunction, alleging the defendants invaded the land in 2014. The defendants, sons of the late Musa E. Juma, denied trespass and Counter-Claimed for a declaration that the plaintiffs' interests were extinguished by adverse possession and for transfer of the land. They asserted their father purchased the land from Papa Imodoi in 1977 and the family had been in open, continuous and exclusive occupation for over 40 years. The court framed six issues including registration, overriding interests and adverse possession. It found the registration of Kipsoi on 20th September 1999 in implementation of a Minister's decision to be a nullity since only a court can cancel title. Applying Kasuve v Mwaani and related authorities, the court held that the defendants and their father had been in nec vi, nec clam, nec precario occupation since 1977; the plaintiffs never occupied the land, living at Koyi Koyi Farm in Kitale; the 2011 demand letter came too late to interrupt the limitation period; and the change of ownership from Kipsoi to the plaintiffs did not interrupt adverse possession. Time ran from 20th September 1999 and had expired by 2018. The plaintiffs' claim was dismissed and the Counter-Claim allowed: the defendants were declared to have acquired the land by adverse possession, the plaintiffs were ordered to transfer it within 30 days, with the Deputy Registrar empowered to execute in default, and the Land Registrar Bungoma directed to rectify the register. Notably, despite the defendants' success, each party was ordered to bear their own costs because costs were neither pleaded in the Counter-Claim nor canvassed at trial.

Key legal issues

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01

Whether the plaintiffs were validly registered as proprietors of the suit land

Holding

The registration of KIPSOI on 20th September 1999 was a nullity because it purported to implement a Minister's decision cancelling a registered title, and only a Court can cancel title; consequently the plaintiffs derived no valid interest

Reasoning

The Green Card showed IMODOI as first registered proprietor on 15th January 1979, whose registration was cancelled on 20th September 1999 allegedly in implementation of a Minister's decision, but no copy of that decision was availed. The court held registration of KIPSOI was a nullity which could not pass title to the plaintiffs, though the fact of registration remained unchallenged and the defendants' claim rested on adverse possession.

p. 4
02

Whether the defendants acquired the suit land by adverse possession

Holding

Yes; the defendants and their father MUSA were in open, continuous, exclusive, peaceful and uninterrupted occupation from 1977, well in excess of the 12-year statutory period, and the plaintiffs' rights were extinguished

Reasoning

The court found the defendants' father purchased the suit land in 1977 (evidenced by acknowledgement slips and independent witnesses), took possession, and that the plaintiffs never occupied the land, living instead at Kitale since 1965. The 2011 demand letter came too late to interrupt occupation, and the change of ownership from KIPSOI to the plaintiffs did not interrupt it. Time ran from 20th September 1999 and had expired by 2018.

p. 7
03

Whether the defendants were entitled to costs despite not pleading them

Holding

No; since costs were neither pleaded nor canvassed, the court declined to award them, ordering each party to bear their own costs

Reasoning

Although section 27 of the Civil Procedure Act provides that costs follow the event, costs remain discretionary and are not awarded automatically. Given the defendants neither pleaded nor led evidence on costs, the court held that awarding them would not be a proper exercise of discretion, especially during the COVID-19 pandemic.

p. 7

Legal principles established

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  • An adverse possession claimant must prove exclusive, open, peaceful and uninterrupted possession for 12 years either after dispossessing the owner or on the owner discontinuing possession on his own volition
  • Only a Court can cancel title to land; a registration effected otherwise than by a court order is a nullity, and a nullity begets a nullity
  • Mere writing of letters does not interrupt a possessor's adverse possession; the proprietor must make an effective entry or take legal action
  • Change of ownership of land occupied by a person in adverse possession does not interrupt that possession

Court orders

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  1. 1.The plaintiffs' claim is dismissed.
  2. 2.The defendants have acquired by way of adverse possession the land parcel NO NORTH MALAKISI/WEST SASURI/96.
  3. 3.The plaintiffs' interests in the land parcel NO NORTH MALAKISI/WEST SASURI/96 have been extinguished by operation of the law.
  4. 4.The plaintiffs shall within 30 days of the delivery of the judgment execute all the relevant documents to transfer the land parcel NO NORTH MALAKISI/WEST SASURI/96 in the joint names of the defendants.
  5. 5.In default of execution, the Deputy Registrar shall be at liberty to execute the said documents on behalf of the plaintiffs and the Land Registrar Bungoma shall rectify the register accordingly.
  6. 6.Each party shall meet their own costs.

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 28
  • Land Registration ActSection 25 and proviso to sub-section (2)
  • Land ActSection 7
  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 7
  • Civil Procedure ActSection 27
  • Halsbury's Laws of England 4th Edition (2010) Vol 10 Paragraph 16

Cases cited (9)

  • KASUVE .V. MWAANI INVESTMENTS LTD & OTHERS
    2004 1 KLR 184
  • WANJE .V. SAIKWA (No 2)
    1984 KLR 284
  • WAMBUGU .V. NJUGUNA
    1983 KLR 173
  • ABDULKHALL MOHAMED ABDULKHALIK MAZRUI & OTHERS .V. JOSIAH KAFUTA J. MTILA & ANOTHER
    2021 eKLR
  • R.V. OXFORDSHIRE COUNTY COUNCIL Ex. P. SUNNINGWELL PARISH COUNCIL
    [2000] AC 335
  • KIMANI RUCHINE .V. SWIFT RUTHERFORD & CO LTD
    1980 KLR
  • GITHU .V. NDEETE
    1984 KLR 776
  • ROBERT SHUME & OTHERS .V. SAMSON KAZUNGU KALAMA
    2015 eKLR
  • NJUGUNA NDATHO .V. MASAI ITUMO & OTHERS
    C.A CIVIL APPEAL No 231 of 1999 [2002 eKLR]
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (claim filed by plaint dated 23rd October 2018)

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, "Richard Namin Kipsoi & 2 others v Eliud Emojong & anotther [2021] KEELC 1677 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1677/eng@2021-09-21

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