Walter Kipchirchir Koech v Tapnyobii w/o Melil & another [2021] KEELC 2395 (KLR)
The bottom line
#A Kericho court confirmed that 40 years of open land occupation overcame a missing land consent, granting the buyer ownership by adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether adverse possession can arise where the claimant entered possession under a sale agreement that became void for want of Land Control Board consent
Yes. Once the purchaser takes possession and the transaction is void for lack of consent, the claimant's continued exclusive, open and hostile possession for over 12 years confers title by adverse possession; the Land Control Act does not apply to acquisition of title by operation of law.
The court held that the Land Control Act only prohibits volitional agreements, transactions or dealings in agricultural land, whereas adverse possession confers title by operation of law. The Applicant took possession in 1975 and 1979, the agreements became void for want of consent, the registered owner allowed matters to drift without evicting him, and his possession was hostile, continuous and uninterrupted for over 40 years. The claimant therefore acquired rights under the Limitation of Actions Act as an overriding interest.
Whether the Respondents' written submissions, filed without any evidence, could defeat the Applicant's claim
No. Submissions are not evidence and cannot take the place of evidence; a party who fails to defend a case through evidence cannot rely on submissions.
The court relied on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi and Avenue Car Hire v Slipha Wanjiru Muthegu, holding that submissions merely crystallise a party's case and are 'marketing language' but are not a mode of receiving evidence under Order 18 Rule 2 of the Civil Procedure Rules. Since the Respondents filed no response or defence and adduced no evidence, their submissions could not come to their aid and the Applicant's uncontroverted evidence stood.
Whether the Applicant proved the elements of adverse possession to 2 1/2 acres excised from LR No. Kericho/Chemagel/1785
Yes, on a balance of probabilities. The Applicant proved actual, open, exclusive and hostile possession and continuous use of the suit land for more than 12 years.
The court found the Applicant purchased portions of land in 1975 and 1979, took possession, and developed the land by fencing, planting trees, cultivating and grazing livestock, as evidenced by photographs. The registered proprietor never interrupted his possession. The possession lasted over 40 years, far exceeding the 12-year limitation period, so the 1st Respondent's title stood extinguished under sections 7, 13 and 17 of the Limitation of Actions Act.
Legal principles established
#- Adverse possession is not a transaction or dealing in agricultural land under the Land Control Act; lack of Land Control Board consent does not defeat a claim to title by adverse possession
- Rights acquired by adverse possession under the Limitation of Actions Act are overriding interests that need not be entered on the register
- Time for adverse possession begins to run when the purchaser takes possession, even where the sale agreement is void for want of Land Control Board consent
Court orders
#- 1.The amended Originating Summons dated 12th April 2019 is allowed as prayed
- 2.The Applicant is granted the orders sought in the Originating Summons to be registered as proprietor of the 2 1/2 acres to be excised from LR No. Kericho/Chemagel/1785 by adverse possession
- 3.Costs of the suit awarded to the Applicant
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over claims to land by adverse possession (Limitation of Actions Act, Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Rorat v Kamoiro & another (Enviromental and Land Originating Summons E010 of 2021) [2024] KEELC 3723 (KLR)[2024] KEELC 3723 (KLR)24 Apr 2024
- Konga v Ringine & 2 others (Environment & Land Case 12 of 2016) [2023] KEELC 771 (KLR)[2023] KEELC 771 (KLR)15 Feb 2023applied
- Mai Mahiu Kijabe Longonot Co Ltd v Kariuki & 6 others (Environment & Land Case 36 of 2017) [2023] KEELC 740 (KLR)[2023] KEELC 740 (KLR)9 Feb 2023applied
Cite this brief
#Cite this brief
Caselaw, "Walter Kipchirchir Koech v Tapnyobii w/o Melil & another [2021] KEELC 2395 (KLR)", Case Analysis (2021). ELC No. 301 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2395/eng@2021-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.