Kitur & another (Suing on behalf of the Estate of Stephen Kitur) v Kitur & another (Environment & Land Case 68 of 2021) [2023] KEELC 78 (KLR)
The bottom line
#A Kenyan court enforced a family's informal land settlement, giving two relatives 5 acres each despite dismissing the formal legal claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff in the counterclaim proved his claim of adverse possession and registered proprietorship
The counterclaim was dismissed: the Plaintiff pleaded adverse possession while simultaneously asserting he was the registered owner, and no title document was produced to ground a claim under section 26 of the Land Registration Act.
The Court held that adverse possession cannot be claimed by a registered owner against himself, as it lies only against another registered owner. Reliance on section 26 of the Land Registration Act failed because no copy of the certificate of title was produced in evidence. The claim was therefore self-contradictory and unproven, and the counterclaim was dismissed.
Whether the LDT No. 3/2000 decree should be implemented
The decree cannot be implemented because it is time barred under section 4(4) of the Limitation of Actions Act, and the suit founded on it was withdrawn.
Under the repealed Land Disputes Tribunal Act, LDT decisions were adoptable as orders or judgments of the Court under section 7(2). Since enforcement of such a decree would be a court judgment, limitation applies; the 2000 decree was thus time barred under section 4(4) of the Limitation of Actions Act. Additionally, the suit that rested on that decree had been withdrawn, leaving no basis for implementation.
Whether the meetings held between 2002 and 2016 constituted traditional dispute resolution and whether the settlement should be adopted
The Court found the family meetings in the presence of the area chief constituted traditional dispute resolution, and adopted the resulting settlement (5 acres each) as a judgment of the Court.
The meetings were held on diverse dates between 2002 and 2016 in the presence of family members and the area chief, resolving that each defendant receive 5 acres. Article 159(2)(c) requires the Court to promote alternative justice systems, including traditional dispute resolution. The settlement was not repugnant to justice and morality, and Section 20 of the Environment and Land Court Act empowers the Court on its own motion to adopt and implement it, avoiding a pyrrhic outcome after withdrawal and dismissal.
Legal principles established
#- A party cannot claim adverse possession against himself; adverse possession is available only against another registered owner.
- An adopted Land Disputes Tribunal decree becomes a judgment of the Court and enforcement is subject to the Limitation of Actions Act.
- The Court may, on its own motion under Section 20 of the Environment and Land Court Act, recognise and implement a settlement reached through traditional dispute resolution mechanisms.
Court orders
#- 1.The counterclaim is dismissed.
- 2.Hillary Kitur, the Plaintiff in the counterclaim, shall subdivide and donate 5 acres each to Charles Kitur and Elizabeth Chelagat as the Administrix of the estate of Late Stephen Kitur.
- 3.The 5 acres to be donated are those already identified in the traditional dispute resolution mechanism and currently occupied by Charles Kitur and his family and Elizabeth Chelagat as Administrix of the Estate of Stephen Kitur and her family.
- 4.The 1st and 2nd Defendants in the counterclaim shall bear the costs of the subdivisions and transfers, and shall attend the Land Control Boards as and when required; Hillary Kitur shall execute the necessary documents to effect the subdivisions and transfer, and in default the Deputy Registrar of this Court shall execute the same.
- 5.The 1st and 2nd Defendants are restricted to use only the areas not more than the 5 acres each already in occupation by them and shall not trespass on the property belonging to Hillary Kitur.
- 6.Each party shall bear its own costs.
- Jurisdiction invoked
- Article 159(2)(c) of the Constitution and Section 20 of the Environment and Land Court Act (adoption of traditional dispute resolution mechanisms)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitur & another (Suing on behalf of the Estate of Stephen Kitur) v Kitur & another (Environment & Land Case 68 of 2021) [2023] KEELC 78 (KLR)", Case Analysis (2023). Not stated in the judgment (transferred to Kapsabet ELC; referenced proceedings: LDT No. 3/2000; High Court Misc. Application No. 162/2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/78/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.