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ELCPartially AllowedElgeyo Marakwet ELC Originating Summons dated 28th June 2012· [2022] KEELC 1419 (KLR)

Rita Jeptoo Kurui & another v Philip Cheruiyot Kigen [2022] KEELC 1419 (KLR)

Environment and Land Court
16 February 2022
2,408 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret court cancelled a land title obtained with a late Land Control Board consent, but the family claiming the land by adverse possession also lost.

What this practically means

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Executive summary

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The Plaintiffs, relatives of the Defendant, brought an originating summons dated 28th June 2012 seeking cancellation of the Defendant's title to L.R No. Elgeyo Marakwet/Kessup 'B'/479 on grounds of fraud and a declaration that they had acquired the land by adverse possession after over 30 years, together with a vesting order and permanent injunction. The Defendant opposed, asserting the land was transferred to him by his father pursuant to a Land Control Board consent of 7th December 2011, and denying the Plaintiffs' possession. The court framed three issues: adverse possession, cancellation of title, and costs. On adverse possession, it held that claimants must prove continuous, open, peaceful and hostile possession for at least twelve years, but found on the evidence (including the parties' residences elsewhere and the absence of proof of possession) that the Plaintiffs had not proved possession at all, dismissing that claim. On the validity of the Defendant's title, the court applied Munyu Maina and Arthi Highway Developers, holding that a registered proprietor must prove the legality of acquisition beyond producing the title deed. The green card showed a transfer registered in 1995, yet the LCB consent, consent letter and title deed all dated December 2011, some sixteen years later, with no explanation; such a consent contravenes sections 6(1) and 8(1) of the Land Control Act. The court cancelled the Defendant's title and reverted the proprietary rights to the prior registered owner per entry No. 2 of the green card, ordered each party to bear its own costs, and directed the Deputy Registrar to forward a certified copy of the judgment to the County Land Registrar, Elgeyo Marakwet.

Key legal issues

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01

Whether the Plaintiffs proved adverse possession

Holding

The claim failed; the Plaintiffs did not prove actual or constructive possession for the required twelve years

Reasoning

PW1 testified she lives in Kapteren and at her grandmother's place, not the suit land; PW2 lives in Kamarin. Burial of their parents on the land alone did not establish thirty years' possession. The court found the Defendant most probably in constructive possession through trees tended by a neighbour, and found it unnecessary to analyse the other elements.

p. 2
02

Whether the Defendant's title was irregularly obtained

Holding

Yes; the title was irregularly and/or unprocedurally obtained and was cancelled

Reasoning

Entry No. 3 on the green card records a transfer registered on 9th September 1995, yet the LCB consent relied on is dated 6th December 2011 and the consent letter and title deed 7th December 2011, roughly sixteen years later, with no explanation. Under sections 6(1) and 8(1) of the Land Control Act, such a consent obtained outside the statutory period is defective and cannot support indefeasibility.

p. 3
03

Costs

Holding

Each party to bear its own costs since neither succeeded fully

Reasoning

The Plaintiffs failed in adverse possession while the Defendant was found to have irregularly obtained registration; the balance of success justified no order as to costs.

p. 3

Legal principles established

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  • A claimant for adverse possession must prove continuous and uninterrupted possession of the land for at least twelve years, open and notorious and hostile to the owner
  • A registered proprietor whose root of title is under challenge must prove the legality of the acquisition, not merely produce the title deed
  • A transaction affecting agricultural land without timely Land Control Board consent is void, and an LCB consent obtained outside the statutory period is highly irregular

Court orders

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  1. 1.The title deed over ELGEYO MARAKWET KESSUP 'B'/479 issued and/or re-issued on 7th December 2011 to the defendant be cancelled
  2. 2.The proprietary rights over ELGEYO MARAKWET KESSUP 'B'/479 be reverted to Kigen Eugaruk Changwony, as per entry No. 2 of the green card
  3. 3.The Deputy Registrar of the court to forward a certified copy of the judgment to the County Land Registrar, Elgeyo Marakwet, for information and action
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Limitation of Actions Act, Chapter 22Sections 7, 13, 17, 37 & 38
  • Land Registration Act No. 3 of 2012Section 28(h)
  • Evidence Act, Chapter 80Sections 107, 108 and 109
  • Land Control Act, Chapter 301Sections 6(1) and 8(1)

Cases cited (5)

  • Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 Others
    [2018] eKLR
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 Others
    (2015) eKLR
  • Hirani Ngaithe Githire v Wanjiku Munge
    [1979] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Land Registration Act and Limitation of Actions Act (original first-instance claim for adverse possession and cancellation of title)

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, "Rita Jeptoo Kurui & another v Philip Cheruiyot Kigen [2022] KEELC 1419 (KLR)", Case Analysis (2022). Elgeyo Marakwet ELC Originating Summons dated 28th June 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1419/eng@2022-02-16

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