Rita Jeptoo Kurui & another v Philip Cheruiyot Kigen [2022] KEELC 1419 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiffs proved adverse possession
The claim failed; the Plaintiffs did not prove actual or constructive possession for the required twelve years
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.
Whether the Defendant's title was irregularly obtained
Yes; the title was irregularly and/or unprocedurally obtained and was cancelled
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.
Costs
Each party to bear its own costs since neither succeeded fully
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.
Legal principles established
#- 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
#- 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.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.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.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.