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ELCAllowedELC Case No. 65 of 2017· [2022] KEELC 1342 (KLR)

Langat Kipkemoi Anthony & another v Maseiya Ole Ololmaitai & another [2022] KEELC 1342 (KLR)

Environment and Land Court
24 February 2022
3,008 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court gave two families ownership of 26 acres they had occupied since 1982, because the registered owners waited too long to assert their rights.

What this practically means

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Executive summary

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This was an Originating Summons dated 11th June 2013 brought under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act by two plaintiffs seeking to be declared owners of 26 acres out of land parcel Narok/Cis-Mara/Il Motiok/235 by adverse possession. Each plaintiff's father had bought a portion (11 and 15 acres respectively) from the defendants in 1982, took possession, built matrimonial homes, cultivated and fenced the land, but the transfers were never effected. The defendants opposed, contending the entry was permissive, that there was no adverse possession for 12 years, that the plaintiffs lacked capacity, and that the suit was overtaken by an amended decree of 31st October 2011 in Narok CMCC No. 77 of 2008, a partition suit between the defendants, whose decree required third parties in occupation to relocate if necessary. Only the plaintiffs filed submissions. The court found it undisputed that the sale and occupation occurred in 1982 and that no evidence of interruption was adduced. Applying Sections 4(1)(a), 7, 13, 37 and 38 of the Limitation of Actions Act, it computed the contract claim as barred by 1988 and adverse possession as accruing by 2000. It declined to disturb the magistrates' court decree, absent an appeal, but held the suit was not defeated by it. The court declared the plaintiffs in continuous, peaceful, open and adverse possession since 2000, declared the defendants' rights extinguished, declared the plaintiffs owners of the 26 acres, ordered issuance of certificates of title in their respective names, and awarded costs against the 2nd defendant.

Key legal issues

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01

Whether the plaintiffs acquired title to the 26 acres by adverse possession

Holding

Yes. Their occupation since 1982 was continuous, open, peaceful and adverse, and the limitation period expired by the year 2000, extinguishing the defendants' rights.

Reasoning

The court found it undisputed that the defendants sold 26 acres to the plaintiffs' fathers in 1982 and that the plaintiffs took possession, built homes, cultivated and fenced the land. No evidence of interruption was adduced. Applying Sections 7, 13, 37 and 38 of the Limitation of Actions Act, the court computed the claim as accruing by 1988 (contract limitation) and adverse possession maturing in 2000. The defendants did not dispute this computation.

p. 3
02

Whether the amended decree in Narok CMCC No. 77 of 2008 defeated the claim

Holding

No. The court declined to delve into the decree since no appeal had been preferred against it, but noted it did not account for the plaintiffs' developments.

Reasoning

The 2nd defendant argued the suit was overtaken by events because of the amended decree of 31st October 2011 in the magistrates' court partition suit. The court observed that the decree's items 2 and 3 dealt with third parties' interests after partition and appeared not to take into account the developments made by the plaintiffs, but held that absent an appeal it would not delve further into that decree.

p. 3

Legal principles established

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  • An action to recover land may not be brought after the end of 12 years from the date the right of action accrued (Section 7, Limitation of Actions Act).
  • Where land is registered, title is not extinguished by adverse possession but is held in trust for the person in adverse possession until a court order vests the land in him.
  • A purchaser of land under a contract who takes possession may found a claim of adverse possession; the limitation period for the contract claim is six years under Section 4(1)(a), after which adverse possession begins to run.

Court orders

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  1. 1.Declared that the plaintiffs have been in continuous and uninterrupted occupation, possession and use of twenty six acres comprising land parcel No. Narok/Cis-Mara/Il Motiok/235
  2. 2.Declared that the said possession, use and continuous occupation have been peaceful, open and adverse to the plaintiffs' interests since the year 2000
  3. 3.Declared that the rights of the defendants to the 26 acres portion of the suit land have been extinguished by effluxion of time
  4. 4.Declared the plaintiffs owners of the 26 acres out of Land parcel No. Narok/Cis-Mara/Il Motiok/235 and directed that a certificate of title do issue in their respective names
  5. 5.Ordered the 2nd defendant to bear the costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 37
  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSection 4(1)(a)

Cases cited (7)

  • Muraguri Githitho versus Mathenge Thiongó
    [2009] eKLR
  • Wanyoike Gathure versus Beverly
    (1965) EA 514, 519
  • Omukaisi Abulitsa versus Albert Abulitsa
    Kakamega HCC No. 8 of 2005 (UR)
  • Anne Gumbi Kiseli versus James Muriuki Mureithi
    [2013] eKLR
  • Peter Mbiri Michuri versus Samuel Michuki
    [2014] eKLR
  • Kahindi Ngala Mwangangi versus Mataha Lewa
    [2014] eKLR
  • Adnam versus Earl of Sanwich
    (1877) 2QB 845
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court; Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act

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, "Langat Kipkemoi Anthony & another v Maseiya Ole Ololmaitai & another [2022] KEELC 1342 (KLR)", Case Analysis (2022). ELC Case No. 65 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1342/eng@2022-02-24

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