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ELCDismissedEnvironment & Land Case 13 of 2021· [2022] KEELC 14417 (KLR)

Kosibei & 48 others v Komei & 32 others

Environment and Land Court of Kenya
27 October 2022
3,668 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed 49 people's land ownership claim because none could identify exactly which plot they had occupied for over 12 years.

What this practically means

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Executive summary

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Forty-nine plaintiffs filed an originating summons on 23/7/2021 seeking declarations that titles to 29 parcels in Miti Mingi Mbaruk Block 6 held by the 33 defendants were extinguished by adverse possession, that the plaintiffs be registered as proprietors, and that the Land Registrar Nakuru be compelled to register them. The plaintiffs traced possession to 1971, when their company, Kalenjin Enterprises Ltd, and the defendants' Mwariki Company Ltd jointly purchased land; they alleged Mwariki hived off 83 acres from their share, subdivided it and issued titles to its members between 1993 and 2002. Service was effected by substituted advertisement, and no defendant entered appearance; the plaintiffs called one witness and filed written submissions relying on sections 7 and 38(1) of the Limitation of Actions Act and adverse possession authorities. FM Njoroge J identified the central question as whether the plaintiffs proved entitlement to registration by adverse possession. The court held none of the 49 plaintiffs identified the specific plot each occupied, and each claimant's case must be proved individually against the proprietor of the title actually occupied. Further, adverse possession cannot run against Government land, and many exhibited official searches showed titles registered in the Government of Kenya's name, possibly under the Settlement Fund Trustees. The claim failed on a balance of probabilities and the originating summons was dismissed with no orders as to costs.

Key legal issues

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01

Specificity of identification of the parcel claimed in adverse possession

Holding

General statements of occupation without parcel-specific claims by each claimant cannot sustain a declaration of title by adverse possession

Reasoning

Although the land was subdivided into titled plots, the 49 plaintiffs made only a general claim of occupation without identifying who occupied which plot. Citing Katana and Koech, the court held that identification of the land in possession is integral to proving adverse possession, particularly with 29 parcels and 33 defendants involved.

02

Adverse possession against Government-registered titles

Holding

No adverse possession claim can lie over parcels registered in the Government's name, including Settlement Fund Trustees land

Reasoning

Many exhibited official searches showed titles registered in the name of the Government of Kenya. Section 41 of the Limitation of Actions Act excludes acquisition of title to Government land, so limitation could never run against such parcels in favour of the plaintiffs.

p. 8
03

Failure to prove claim on a balance of probabilities

Holding

The plaintiffs' claim as pleaded and evidenced failed to meet the standard of proof for adverse possession

Reasoning

The plaintiffs did not demonstrate how proprietorship changed from the companies to the individual defendants, nor that they were individually registered. The pleading at paragraph 20 of the supporting affidavit was too general to found a prescriptive title claim.

Legal principles established

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  • In a claim for title by adverse possession, the claimant must specifically identify the exact land parcel claimed and the full extent of physical occupation for over 12 years
  • Each plaintiff in a multiple-claimant adverse possession suit must prove their own claim against the proprietor of the title they actually occupy
  • Adverse possession cannot be acquired against Government land, including land under the Settlement Fund Trustees

Court orders

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  1. 1.The Originating Summons dated 23/7/2021 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 37
  • Limitation of Actions ActSection 41
  • Registered Land Act (repealed)Section 32(2)
  • Mining ActCap. 306 (referenced in s.41)
  • Mineral Oil ActCap. 307 (referenced in s.41)
  • Water ActCap. 372 (referenced in s.41)
  • Government Lands ActCap. 280 (referenced in s.41)

Cases cited (10)

  • Celina Muthoni Kithinji Vs Safiya Binti Swaleh & 8 Others
    [2018] eKLR

    Ingredients of adverse possession: non-permissive, actual, open, notorious, exclusive and adverse use for the prescribed period

  • Maweu Vs Liu Ranching and Farming Co-Operative Society
    [1985] KLR 430

    Requirements of adverse possession

  • Public Trustee Vs Wanduru
    [1984] eKLR

    Time runs from date of entry upon payment of purchase price

  • Johnson Kinyua Vs Simon Gitura Rumuri
    Civil Appeal 265 of 2005 [2011] eKLR

    Certificate of official search upheld as substitute for certified extract of title

  • James Obande Wasui Vs Jeremiah Ochwanda Musumba
    [2002] eKLR

    Occupier's adverse possession rights survive change of ownership of the land

  • Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another
    [2015] eKLR

    Identification of the land in possession is integral to proving adverse possession

  • Githu v Ndeete
    [1984] KLR 776

    Requirement of identifying portions claimed in adverse possession

  • Samuel Kipngeno Koech v Agnes Wambui Gitonga
    [2016] eKLR

    Need for specificity; entities against whom time cannot run under section 41

  • Benson Mukuwa Wachira v Assumption Sisters of Nairobi Registered Trustees
    [2016] eKLR

    No adverse possession against the Government

  • Marao Gitahi v Gerald Wambui Kiragu
    [2019] eKLR

    No adverse possession against the Government

Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) and the Environment and Land Court Act; claim brought under sections 7 and 38(1) of the Limitation of Actions Act

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, "Kosibei & 48 others v Komei & 32 others", Case Analysis (2022). Environment & Land Case 13 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14417/eng@2022-10-27

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