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ELCAllowedOriginating Summons dated 26th January 2004· [2022] KEELC 3312 (KLR)

Siomo Farmers Co-operative Society v Kilel & 2 others (sued as the chairman, secretary and treasurer of Rerendet Self Help Group) (Environment & Land Case 3 of 2004) [2022] KEELC 3312 (KLR)

Environment and Land Court
2 June 2022
3,549 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kericho confirmed that occupying land openly for over 12 years without the owner's permission can legally make you its owner.

What this practically means

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Executive summary

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Siomo Farmers Co-operative Society (formerly Embomos Co-op Society, Reg. No. 2202) brought an Originating Summons dated 26th January 2004 under Section 38(1) of the Limitation of Actions Act and Order XXXVI Rule 3D of the Civil Procedure Rules, seeking a declaration of adverse possession over 0.3 hectares comprised in LR No. Kericho/Cheptalal/1803, a vesting order for its transfer, a permanent injunction against the Defendants, and costs. The Society's case was that it purchased the parcel in 1975 from the 1st Defendant, Cheruiyot Kilel, for Kshs 1,800/= (with a Kshs 300/= customary token), took immediate possession, and erected a fence, shop, store, dispensary and later a Chief's and zonal education office. The 1st Defendant never transferred the land; in 2000 the parent parcel was subdivided and the suit parcel registered to the 2nd Defendant, Rerendet Self Help Group, described as break-away Society members. The Defendants filed a replying affidavit but did not attend the hearing, which proceeded exparte on 3rd February 2022. The court, applying Sections 7, 13, 37 and 38 of the Limitation of Actions Act and authorities including Samuel Miki Waweru v Jane Njeri Richu and Benjamin Kamau Murma vs Gladys Njeri, held that the sale was a controlled transaction rendered void for lack of Land Control Board consent, whereafter possession became adverse. Possession for over 29 years was actual, open, exclusive and hostile, and the subdivision and transfer did not interrupt it. The Originating Summons was allowed in its entirety, with each party to bear their own costs.

Key legal issues

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Whether the Plaintiff acquired LR No. Kericho/Cheptalal/1803 by adverse possession

Holding

Yes - the Plaintiff proved actual, open, exclusive and hostile possession for over 29 years, well beyond the 12-year limitation period, and the Originating Summons was allowed in its entirety.

Reasoning

The Plaintiff purchased 0.3 hectares in 1975, paid the full price in instalments, and took immediate possession, erecting a fence, shop, store, dispensary, chief's and education offices. The sale was a controlled transaction rendered void for want of Land Control Board consent, so continued possession became adverse. Possession was uncontroverted, the defendants having failed to attend the exparte hearing, and was unaffected by the subsequent 2000 subdivision and transfer to the 2nd Defendant.

p. 7

Legal principles established

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  • Where a purchaser in a controlled transaction is permitted possession pending completion and the transaction becomes void for lack of Land Control Board consent, continued possession becomes adverse from the time the transaction becomes void.
  • The combined effect of Sections 7, 13 and 17 of the Limitation of Actions Act extinguishes the registered proprietor's title in favour of an adverse possessor after 12 years.
  • For adverse possession, time runs from the date the purchaser is granted possession after completing payment of the purchase price.

Court orders

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  1. 1.The Plaintiff's Originating Summons dated 26th January 2004 is allowed in its entirety as prayed
  2. 2.The Plaintiff is declared to have acquired 0.3 hectares comprised in LR No. Kericho/Cheptalal/1803 by way of Adverse Possession
  3. 3.A vesting order for transfer of the said 0.3 hectares to the Plaintiff
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSections 37 and 38(1) and (2)
  • Limitation of Actions ActSections 9, 10, 11, 12 and 17
  • Civil Procedure RulesOrder XXXVI Rule 3D; Order 37 Rule 7
  • Land Control ActSection 6(1)

Cases cited (6)

  • Kasuve vs Mwaani Investment Limited & 4 Others
    [2004] eKLR
  • Safari Mwei Mangi & 4 others vs Estate of Hamisi Mwinikai Ramadhan (deceased) & 7 Others
    [2020] eKLR
  • Littledale vs Liverpool College
    (1900)1 Ch.19, 21
  • Samuel Miki Waweru v Jane Njeri Richu
    [2007] eKLR
  • Stephen Mwangi Waweru v Omari Abdullah Muchiri
    [2019] eKLR
  • Benjamin Kamau Murma & Others vs Gladys Njeri
    C A No. 213 of 1996
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act and Order XXXVI Rule 3D of the Civil Procedure Rules

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, "Siomo Farmers Co-operative Society v Kilel & 2 others (sued as the chairman, secretary and treasurer of Rerendet Self Help Group) (Environment & Land Case 3 of 2004) [2022] KEELC 3312 (KLR)", Case Analysis (2022). Originating Summons dated 26th January 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3312/eng@2022-06-02

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