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ELCDismissedOriginating Summons dated 12th June, 2014 (as amended 30th June, 2015)· [2022] KEELC 1299 (KLR)

James Kimaiyo Bungei v Mary Jerono Murei (Sued as the administrator to the estate of the late Kiptalam Arap Murei & another [2022] KEELC 1299 (KLR)

Environment and Land Court
23 February 2022
SKS. M. Kibunja
2,773 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant sought declaratory and vesting orders by Originating Summons, claiming he had been in open, notorious and uninterrupted adverse possession since 1968 of five acres of Nandi/Chemase/244, later subdivided into parcels 1232 to 1238 in succession proceedings. He claimed the whole of Nandi/Chemase/1233 and one acre of Nandi/Chemase/1232, now registered in the names of the 1st and 2nd Respondents. The Respondents denied his occupation, contending he lived on neighbouring Nandi/Chemase/245 and that the new titles, being less than 12 years old, could not be defeated by adverse possession. The Respondents, though present through counsel at earlier stages, did not testify. The Applicant testified and called two witnesses whose cross-examination revealed that the Applicant lived at Ndurio, in a different location and sub-location from the suit property, that the 1st Respondent lived on the suit land, and that the person likely occupying the disputed portion was one Rael Chebore and her son Kiprono, neither of whom was a party, and no representative claim was pleaded. The court applied section 7 of the Limitation of Actions Act and the Chevron and Gabriel Mbui authorities on the ingredients of adverse possession, holding that possession must be actual, open and without permission, and that time continues to run despite subdivision or change of title. Finding the Applicant not in possession and his claim unproved on a balance of probabilities under section 106 of the Evidence Act, the court dismissed the suit and awarded the Respondents costs under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the Applicant was in adverse possession of Nandi/Chemase/244 (later 1233 and part of 1232) for at least 12 years

Holding

No. The Applicant's own cross-examination and his witnesses confirmed he did not live on the suit property but at Ndurio; the persons who likely occupied the land (Rael Chebore and Kiprono) were not parties and no representative claim was made.

Reasoning

Possession in adverse possession must be nec vi, nec clam, nec precario and must rest on de facto use and occupation by the entrant. The Applicant admitted the 1st Respondent lives on the land; his witnesses confirmed he lived at Ndurio in a different location and sub-location. His case failed on the balance of probabilities under section 106 of the Evidence Act.

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02

Whether the Respondents' argument that the new titles (1232 and 1233) having existed less than 12 years defeats the claim

Holding

No. The court rejected the contention that fresh registration after subdivision resets the limitation clock where possession continues.

Reasoning

The court held, relying on superior court decisions cited by the Applicant, that time continues to run notwithstanding a change of title holder or subdivision so long as possession is continuous, uninterrupted and adverse to the title holder's interest.

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Legal principles established

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  • A claim of adverse possession cannot succeed without possession; the claimant must prove actual physical occupation of the land for the statutory period.
  • The limitation period continues to run despite change or subdivision of title so long as possession is continuous, uninterrupted and adverse.
  • The burden is on the claimant to prove the twelve-year period, possession without the true owner's permission, and acts inconsistent with the owner's enjoyment of the soil.

Court orders

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  1. 1.The Applicant's Originating Summons is dismissed with costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act (Cap 22), section 38, by Originating Summons for 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, "James Kimaiyo Bungei v Mary Jerono Murei (Sued as the administrator to the estate of the late Kiptalam Arap Murei & another [2022] KEELC 1299 (KLR)", Case Analysis (2022). Originating Summons dated 12th June, 2014 (as amended 30th June, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1299/eng@2022-02-23

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