Tuimising v Ngeno & another (Environment & Land Case 14 of 2015) [2022] KEELC 2984 (KLR)
The bottom line
#The Kericho Environment and Land Court dismissed an adverse possession claim because the claimant couldn't prove who owned the land or 12 years of uninterrupted occupation.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Order 37 Rule 7(2) – annexure of certified extract of title
The Plaintiff did not annex an extract of the title, a title deed or any document of title, so the court could not tell who the registered proprietor was or whether time could run against them
Order 37 Rule 7(2) mandatorily requires a certified extract of title to be annexed to an adverse possession Originating Summons because the register shows entries against whom time cannot run (e.g. Settlement Fund Trustee, Government land under Section 41). Without it, the court cannot verify the proprietor or compute limitation. Parties are held to their pleadings; failure to annex is fatal.
Burden of proof on the adverse possession claimant
The claimant bears the burden of proving the 12-year period, that possession was without the true owner's permission, that the owner was dispossessed or discontinued possession, and that acts inconsistent with the owner's enjoyment were done
Relying on Littledale v Liverpool College, the court restated that possession must be open, peaceful and continuous for 12 years without the true owner's permission and with acts inconsistent with the owner's enjoyment. The defence evidence (Paul Rotich living on and tending the land since 1998, the 2015 injunction) displaced the Plaintiff's claims of possession since 2001.
Validity of the sale agreement and its effect on the adverse possession claim
The sale agreement was null and void because the vendors had no title to pass (land still registered to the deceased) and for lack of Land Control Board consent after six months; the claim was therefore to be decided solely on adverse possession
The land was registered to David Chesimet Koech who was deceased at the time of the 2001 agreement and no Letters of Administration had issued, so the vendors held no valid title. Additionally, no Land Control Board consent was obtained, rendering the agreement null and void after six months under the Land Control Act. The dispute thus turned solely on adverse possession, which the Plaintiff failed to prove.
Legal principles established
#- A claim for adverse possession must be brought against the registered proprietor and the claimant must annex a certified extract of the title/register as required by Order 37 Rule 7(2), since some categories of registered entities are excluded from the computation of time
Court orders
#- 1.Suit dismissed with costs to the Defendants
- Jurisdiction invoked
- Order 37 Rules 3, 14 and 15 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tuimising v Ngeno & another (Environment & Land Case 14 of 2015) [2022] KEELC 2984 (KLR)", Case Analysis (2022). Originating Summons dated 28th March 2015 (amended 23rd January 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2984/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.