Keino v Kiprotich & another (Environment & Land Case 735 of 2012) [2022] KEELC 5 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff proved adverse possession of Nandi/Chepkongony/405 for over twelve years
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
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.
Whether possession under an alleged sale agreement can be adverse
Possession as a purchaser is with the vendor's permission or licence and therefore not adverse
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.
Whether the court could declare the defendant lawful proprietor on the strength of submissions alone
No - parties are bound by their pleadings and no counterclaim for such declaration was filed
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
#- 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
#- 1.The plaintiff's claim for adverse possession over Nandi/Chepkongony/405 is dismissed with costs to the defendant
- 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.The consent order of the October 7, 2014 is declared spent as the suit has been determined
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.