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ELCDismissedELC Case No 143 of 2021 (formerly Eldoret ELC Case No 354 of 2016)· [2023] KEELC 444 (KLR)

Kipkurgat v Soi (Environment & Land Case 143 of 2021) [2023] KEELC 444 (KLR)

Environment and Land Court
30 January 2023
3,775 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out both brothers' land claims because the eviction issue was already decided and the claim came decades too late.

What this practically means

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Executive summary

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The Plaintiff, Samuel Kipkurgat Soi, sued his brother John Kipkoech Soi seeking eviction from land parcel Nandi/Chepkongony/472, claiming he purchased it in 1977 and obtained title in 1981. The matter had earlier proceeded undefended before the ELC at Eldoret; that judgment was set aside on 22 July 2019, a defence and counterclaim were filed, and after two failed mediations the suit proceeded to full hearing at Kapsabet. The Defendant pleaded res judicata (relying on Eldoret ELC No 412 of 2013, in which the eviction prayer had been dismissed) and limitation, and counterclaimed for a declaration that the Plaintiff's title was extinguished by adverse possession and for registration as proprietor, claiming he had bought the property from Isaac Rono in 1977 and occupied it since. The court framed five issues. It found the suit res judicata, all elements under Section 7 of the Civil Procedure Act and IEBC v Maina Kiai being met, since eviction of the Defendant was litigated and determined in the 2013 suit between the same parties under the same title. In the alternative, it found the suit time barred, filed 23 years after the 12-year limitation period expired. On the counterclaim, it held the Defendant's entry was permissive and that time for adverse possession ran only from 2013 when the eviction suit was filed, so 12 years had not elapsed; further, adverse possession is impermissible between close relatives per Samuel Kihamba v Mary Mbaisi. Both the suit and the counterclaim were dismissed, with each party bearing its own costs.

Key legal issues

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01

Whether the Plaintiff's suit is res judicata

Holding

The suit is res judicata, the Plaintiff having previously sought eviction of the Defendant from the same parcel in Eldoret ELC No 412 of 2013 between the same parties under the same title before a court of competent concurrent jurisdiction

Reasoning

The court applied the five elements of res judicata drawn from Section 7 of the Civil Procedure Act and IEBC v Maina Kiai: the parties, the subject matter (Nandi/Chepkongony/472), the relief (eviction) and the title were identical to the earlier suit heard and finally determined by Ombwayo J on 1/6/2016, a court of concurrent competent jurisdiction. All elements were satisfied and the suit was therefore barred.

p. 7
02

Whether the suit is time barred

Holding

The suit is time barred; recovery of land must be sought within 12 years and the suit filed in 2016 was 23 years late

Reasoning

Although the court had already found the suit res judicata, it addressed limitation in the alternative. The Plaintiff was registered as owner in 1981, so an action for recovery under Section 7 of the Limitation of Actions Act ought to have been filed by 1993. Filing in 2016 was 23 years late, and the court agreed with the Defendant's submission that the claim was statute barred.

p. 7
03

Whether the Defendant proved adverse possession extinguishing the Plaintiff's title

Holding

Adverse possession was not proven: entry was with permission, deemed withdrawn only in 2013, so 12 years had not elapsed by 2016; and in any event adverse possession is impermissible between close relatives

Reasoning

The Defendant's entry in 1977 was permissive - he worked for the Plaintiff and was still in school - so time did not run until permission was deemed withdrawn when the Plaintiff filed the 2013 eviction suit. By 2016, 12 years had not lapsed. The court relied on Wairimu Mburu v Chege Thaiya on licensees, and alternatively on Samuel Kihamba v Mary Mbaisi holding that adverse possession cannot run between close relatives.

p. 7
04

Whether the Defendant is entitled to the counterclaim reliefs

Holding

The counterclaim was dismissed, adverse possession not having been proven

Reasoning

Having failed on the adverse possession claim both because occupation was permissive and because the parties are blood brothers, the Defendant could not obtain a declaration extinguishing the Plaintiff's title or an order for registration as proprietor. The counterclaim was accordingly dismissed alongside the Plaintiff's suit.

p. 8

Legal principles established

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  • A suit previously litigated between the same parties, under the same title, before a court of competent jurisdiction, over the same subject matter and relief is res judicata under Section 7 of the Civil Procedure Act
  • An action to recover land must be brought within 12 years of the accrual of the right of action under Section 7 of the Limitation of Actions Act
  • Time for adverse possession does not run against a licensee until the permission is withdrawn; a person who occupies as a licensee cannot claim land by adverse possession
  • The doctrine of adverse possession does not apply within families against close relatives

Court orders

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  1. 1.The Plaintiff's suit is dismissed, having been found res judicata and time barred
  2. 2.The Defendant's counterclaim is dismissed, adverse possession not having been proven
  3. 3.Each party shall bear its own costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to land parcel Nandi/Chepkongony/472

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, "Kipkurgat v Soi (Environment & Land Case 143 of 2021) [2023] KEELC 444 (KLR)", Case Analysis (2023). ELC Case No 143 of 2021 (formerly Eldoret ELC Case No 354 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/444/eng@2023-01-30

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