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ELCDismissedOriginating Summons dated 18th July 2011 (referencing Kapsabet PMCC No. 60 of 2011)· [2022] KEELC 5 (KLR)

Keino v Kiprotich & another (Environment & Land Case 735 of 2012) [2022] KEELC 5 (KLR)

Environment and Land Court
4 May 2022
4,869 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a Kenyan farmer's adverse possession claim because living on land you bought cannot count as hostile possession against the seller.

What this practically means

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Executive summary

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The plaintiff, Ezekiel Musa Keino, brought an originating summons dated 18 July 2011 seeking to be registered as proprietor of Nandi/Chepkongony/405 on the ground of adverse possession, contending he bought the land in 1972 from the late Tabarmei Chepkwony for Kshs 500 and had been in uninterrupted possession since, extinguishing the registered title under the Limitation of Actions Act. The defendant, son of the late registered proprietor who obtained a grant in Kapsabet Succession Cause No. 20 of 2010, denied the purchase and the plaintiff's possession, asserting he and his mother occupied the land since 1969/1988. The plaintiff testified that he never lived on the land (residing at Baraton since 2003), had no written sale agreement, dealt through his late brother-in-law, and gave inconsistent figures for the purchase price. Defence witnesses confirmed the plaintiff never resided on the suit land and that both parties at times farmed it, with each uprooting the other's crops. The court set out the statutory framework in sections 7, 13, 16, 17 and 38 of the Limitation of Actions Act and the ingredients of adverse possession from Gabriel Mbui v Mukindia Maranya. It found the alleged 1972 sale unproven, the discrepancy in the purchase price a material contradiction, and any possession held as a purchaser permissive rather than adverse. Applying section 107 of the Evidence Act, it held the plaintiff failed to discharge the burden of proving twelve years of continuous, open, exclusive, hostile possession. The court declined the defendant's request, made only in submissions, to be declared lawful proprietor, as parties are bound by their pleadings. The claim was dismissed with costs to the defendant, the inhibition of July 25, 2014 was lifted, and the consent order of October 7, 2014 was declared spent.

Key legal issues

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01

Whether the plaintiff proved adverse possession of Nandi/Chepkongony/405 for over twelve years

Holding

The plaintiff failed to prove the 1972 purchase from the late Tabarmei Chepkwony and failed to prove continuous, exclusive, hostile possession for twelve years; his claim was dismissed

Reasoning

The plaintiff gave contradictory testimony on the purchase price (Kshs 500 in pleadings, Kshs 800 in cross-examination) and produced no written agreement or witness to the transaction. Any possession he had was permissive as a purchaser until the vendor's death in 1988. Defence witnesses established that the plaintiff never resided on the suit land and that both parties at times farmed it, with the defendant uprooting the plaintiff's crops. Under section 107 of the Evidence Act the burden lay on the plaintiff, and it was not discharged.

p. 8
02

Whether possession under an alleged sale agreement can be adverse

Holding

Possession as a purchaser is with the vendor's permission or licence and therefore not adverse

Reasoning

The court reasoned that the plaintiff's alleged occupation from 1972 was as a purchaser of the land, which is possession by permission of the vendor. Such permissive possession cannot found a claim of adverse possession because it lacks the requisite hostility or non-permissive character; time for limitation purposes could not run against the vendor on that footing.

p. 7
03

Whether the court could declare the defendant lawful proprietor on the strength of submissions alone

Holding

No - parties are bound by their pleadings and no counterclaim for such declaration was filed

Reasoning

The defendant sought a declaration of lawful proprietorship only in written submissions, without a counterclaim or averment in his replying affidavit. Granting relief not pleaded would prejudice the plaintiff, who would not have had an opportunity to respond. The court accordingly declined to make that declaration and confined itself to dismissing the plaintiff's claim and granting costs.

Legal principles established

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  • A plaintiff claiming adverse possession bears the burden of proving continuous, uninterrupted, open, exclusive and hostile possession for at least twelve years, and possession as a purchaser under a licence from the vendor does not count as adverse possession
  • A discrepancy in a claimant's testimony on the purchase price paid is a material contradiction that undermines credibility
  • A court cannot grant a relief that was not pleaded, as parties are bound by their pleadings

Court orders

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  1. 1.The plaintiff's claim for adverse possession over Nandi/Chepkongony/405 is dismissed with costs to the defendant
  2. 2.The order of inhibition against Nandi/Chepkongony/405 of the July 25, 2014 is lifted and or vacated upon a copy of the order being filed with the Land Registrar, Nandi County
  3. 3.The consent order of the October 7, 2014 is declared spent as the suit has been determined

Authorities

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Legislation

  • Limitation of Actions Actsections 7, 13, 16, 17 and 38(1) and (2)
  • Registered Lands Act (repealed)section 30(f)
  • Law Reform Actsection 2
  • Evidence Actsection 107
  • Civil Procedure Actsection 27

Cases cited (13)

  • Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another
    [2015] eKLR
  • Wambugu v Njuguna
    [1983] KLR 172
  • Kipketer Togom v Isaac Cipriano Shigore
    [2012] eKLR
  • Karuntimi Raiji M'Makinya M'Itunga
    [2013] eKLR
  • Peter Thuo Kairu v Kuria Gacheru
    [1988] KAR 111
  • Maweu v Liu Ranching and Farming Cooperative Society
    [1985] KLR 430
  • Mbira v Gachuhi
    [2002] 1 EALR 137
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Gachuma Gacheru v Maina Kabuchwa
    [2016] eKLR
  • Samwel Nyakenogo v Samwel Orucho Onyaru
    [2010] eKLR
  • Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 others
    [2018] eKLR
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Karnataka Board of Wakf v Government of India & others
    [2004] 10 SCC 779
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under section 38(1) of the Limitation of Actions Act (claim for registration as proprietor by adverse possession)

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, "Keino v Kiprotich & another (Environment & Land Case 735 of 2012) [2022] KEELC 5 (KLR)", Case Analysis (2022). Originating Summons dated 18th July 2011 (referencing Kapsabet PMCC No. 60 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/5/eng@2022-05-04

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