Kiptum Kosgei v Samson Kiplagat Mursoy & another [2022] KEELC 1027 (KLR)
The bottom line
#A landowner who sued to evict a 1993 buyer lost everything — the court gave the land to the buyer through adverse possession and cancelled the owner's title.
What this practically means
#Executive summary
#Key legal issues
#Whether a valid and binding agreement for sale existed between the Plaintiff and Defendant dated 10/6/1993
The court found a valid and binding agreement existed, evidenced by the agreement itself, the proposed subdivision scheme signed a day after the agreement, the Land Control Board consent application signed by both parties showing the consideration of Kshs 50,000, and the testimony of the witnesses to the agreement
The Plaintiff's claim that the agreement was a forgery was contradicted by his own demand letter seeking a balance of purchase price, which presupposed an initial agreement and deposit. Two witnesses to the agreement (DW3 and DW4) confirmed witnessing its execution. The proposed subdivision prepared on 11/6/1993 named the Defendant as transferee, and the LCB consent application dated 27/10/1997 recorded the same consideration. The court therefore rejected the forgery claim.
Whether the Defendant acquired purchaser's interest and whether adverse possession ran in his favour
The Defendant acquired purchaser's interest at the time of purchase; his possession became adverse from 1999 when the agreement became unenforceable, so adverse possession was complete by 2011, well before the 2019 suit
Relying on the Court of Appeal in Samwel Miki Waweru v Jane Njeri Richu, the court held that possession under a void controlled transaction becomes adverse when the transaction becomes void. The agreement became void after 6 months for lack of LCB consent and unenforceable after 6 years under limitation law, fixing 1999 as the commencement of adverse possession. The Plaintiff's suit filed in 2019 was therefore statute barred.
Whether the Plaintiff proved his case on a balance of probabilities
The Plaintiff failed to prove his case; his whole case was that the agreement was a forgery, which the court found untrue
The Plaintiff's case rested entirely on the allegation that the 1993 agreement was a forgery. Once the court found the agreement genuine, the Plaintiff's claim necessarily failed. Even taking the Plaintiff's own pleaded date of occupation (8/4/2005), the suit filed in 2019 would still be time barred under Section 7 of the Limitation of Actions Act.
Whether the Defendant deserves the orders sought in the counterclaim, including joinder of the second Plaintiff in the counterclaim
The counterclaim succeeded; the joinder of the second Plaintiff in the counterclaim was procedurally proper under Order 7 Rule 8 of the Civil Procedure Rules, and adverse possession was properly pleaded by counterclaim
Joinder of a party not in the original suit to a counterclaim is governed by Order 7 Rule 8 of the Civil Procedure Rules, making the joinder of the wife proper. A claim of adverse possession may be raised by counterclaim in an action for eviction, per the Court of Appeal in Chevron (K) Ltd v Harrison Charo wa Shutu. Having occupied since 1993, first as purchaser and from 1999 as adverse possessor, the counterclaimants were entitled to registration as proprietors.
Legal principles established
#- Where a purchaser of land in a controlled transaction is permitted into possession by the vendor pending completion and the transaction becomes void under Section 6(1) of the Land Control Act for lack of consent, the continued possession becomes adverse from the time the transaction becomes void
- A claim of adverse possession may properly be brought by way of counterclaim rather than by originating summons
- A land sale agreement that becomes void under Section 6(1) of the Land Control Act cannot be enforced after six years by virtue of limitation of actions
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.That the Plaintiff as the proprietor of Title Nandi/Baraton/1158 is holding the same in trust to the Defendants/Plaintiffs in the counterclaim and his proprietary rights and interests in Nandi/Baraton/1158 are extinguished under Section 17 of the Limitation of Actions Act and the title in the name of the plaintiff Mr. Kiptum Kosgey is cancelled
- 3.The Land Registrar Nandi County to rectify the register accordingly and register Samson Kiplagat Mursoy and Jane Chemutai Mursoy as the new proprietors of Nandi/Baraton/1158
- 4.The Plaintiff to bear the costs of the original suit and the costs of counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit transferred from the Senior Principal Magistrates Court at Kapsabet
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Cherutich v Kebut (Environment and Land Appeal 10 of 2023) [2025] KEELC 179 (KLR)[2025] KEELC 179 (KLR)22 Jan 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kiptum Kosgei v Samson Kiplagat Mursoy & another [2022] KEELC 1027 (KLR)", Case Analysis (2022). Kapsabet ELC (suit transferred from Senior Principal Magistrates Court at Kapsabet). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1027/eng@2022-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.