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ELCAllowedOriginating Summons dated July 14, 2016· [2022] KEELC 3305 (KLR)

Togom (Suing as the Administrator of the Estate of the late Peter Kimutai Togom) v Jeptanui (Environment and Land Case Civil Suit 54 of 2021) [2022] KEELC 3305 (KLR)

Environment and Land Court
31 May 2022
4,659 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court handed a family 3.7 acres they had occupied since 1998, ruling that long, open occupation without the owner's objection legally transfers ownership.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of her late husband Peter Kimutai Togom, claimed 3.7 acres within Nandi/Baraton/858 by adverse possession. Her case was that the deceased bought the land in 1998 from the defendant's father, Kimeli arap Keter, fenced it, planted trees and occupied it peacefully until the defendant, registered in 2015 after her father's death, threatened eviction. The defendant contended the 12-year period had not run, that no sale agreement existed, and that any agreement was void for want of Land Control Board consent. The court deemed the Originating Summons a plaint and heard viva voce evidence, including a joint survey report by the County Land Surveyor showing the acreage of the two parcels had effectively been interchanged on the ground, corroborating the plaintiff's account of fencing and occupation. The court believed PW1 and PW2, noting all three defence witnesses were not present on the land in 1998. It found the 1998 entry was consensual under a sale agreement, but the agreement became void by operation of law under section 6(1) of the Land Control Act six months later, terminating the consent; possession thereafter became adverse, following Miki Waweru v Jane Njeri Richu. Time therefore began to run no later than 1999 and the right accrued in 2011, before the vendor's death in 2013. Judgment was entered for the plaintiff: the defendant's title to the 3.7 acres was extinguished under section 17 of the Limitation of Actions Act, the County Surveyor to hive out the 3.7 acres with regard to existing developments, the register to be rectified, and the plaintiff awarded costs.

Key legal issues

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01

When time began to run for adverse possession

Holding

Entry in 1998 was consensual pursuant to a sale agreement, but the agreement became void by operation of law under section 6(1) of the Land Control Act six months later; time therefore began to run no later than 1999, and the right accrued in 2011.

Reasoning

The court found Peter Togom entered the land in 1998 under an agreement for sale, i.e. with the owner's consent. Because no Land Control Board consent was obtained, the agreement became void after six months by operation of law, which effectively terminated the consent. Following Miki Waweru v Jane Njeri Richu, continued possession then became adverse. Twelve years from 1999 yielded 2011, well before the first dispute in 2013.

p. 8
02

Whether the ingredients of adverse possession were proved

Holding

Yes. From 1999 the occupation was non-consensual and non-permissive, and the survey report corroborated actual, open, notorious and exclusive occupation; the right had accrued by 2011 before the vendor's death in 2013.

Reasoning

Applying the test in Mombasa Teachers Co-operative Savings and Credit Society v Robert Muhambi Katana, the court found the post-1999 occupation was non-permissive. The joint survey report showed parcel 858 reduced from 10.7 acres on the mutation to 6.177 acres on the ground, corroborating PW1 and PW2 on fencing and occupation of the additional 3.7 acres. The vendor died in 2013, after the right had already accrued in 2011.

p. 9
03

Credibility of evidence on entry in 1998

Holding

The evidence of PW1 and PW2 on entry and fencing in 1998 was believed; the defence witnesses were not present on the land in 1998 and could not contradict those events.

Reasoning

PW2's testimony that Kimeli arap Keter told him the portion had been sold to Peter Togom in 1998 corroborated PW1. The court contrasted this with the defence witnesses: DW1 was not present in 1998, DW2 had left Baraton for Mosoriot in 1998, and DW3 only bought his parcel in 2007, so none could testify to the events of 1998.

p. 8

Legal principles established

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  • Where a purchaser enters land under a controlled transaction which becomes void under Section 6(1) of the Land Control Act for lack of Land Control Board consent, the permission is terminated by operation of law and continued possession becomes adverse from the time the transaction becomes void.
  • Entry onto land with the owner's consent can mature into adverse possession if the consent is terminated and the occupier remains for 12 years without the owner taking steps to repossess.

Court orders

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  1. 1.The Defendant's title and interest in Nandi/Baraton 858, in relation to 3.7 acres currently occupied by the Plaintiff, is extinguished by virtue of Section 17 of the Limitation of Actions Act
  2. 2.The County Land Surveyor Nandi County to hive out only the 3.7 acres from Nandi/Baraton/858, with resultant titles to be given to the Plaintiff for the 3.7 acres and the Defendant the rest
  3. 3.In hiving out the 3.7 acres, the County Surveyor to have regard to the current developments by the Plaintiff, who occupies 4.62 acres in Nandi/Baraton/858
  4. 4.The Land Registrar Nandi County to rectify the Register accordingly and, upon the subdivision, register the Plaintiff on the 3.7 acres to be hived out in Nandi/Baraton/858
  5. 5.The Plaintiff shall have the costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 17
  • Land Control ActSection 6(1)

Cases cited (8)

  • Shadrack Bungei vs Selina Jerotich C
    Eldoret Court of Appeal Case No. 4/2018
  • Wilson Kazungu Katana and 101 others vs Salim Abdalla Bashwein and another
    (2016) eKLR
  • Kasure vs Mwaano Investments Limited and 4 others
  • Iwanje vs Siakwa
  • Kasuve vs Mwaani Investments Limited and 4 others
  • Mombasa Teachers Co-operative Savings and Credit Society Limited vs Robert Muhambi Katana
    (2018) eKLR
  • Wambugu vs Njuguna
  • Miki Waweru vs Jane Njeri Richu
    2007 eKLR
Jurisdiction invoked
Original jurisdiction over claims for adverse possession under the Limitation of Actions Act; Environment and Land Court

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, "Togom (Suing as the Administrator of the Estate of the late Peter Kimutai Togom) v Jeptanui (Environment and Land Case Civil Suit 54 of 2021) [2022] KEELC 3305 (KLR)", Case Analysis (2022). Originating Summons dated July 14, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3305/eng@2022-05-31

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