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ELCDismissedELC Appeal (Kitale) – arising from Kapenguria SPMC Land Case No 23 of 2019· [2023] KEELC 778 (KLR)

Lomormoi v Lubusi (Environment and Land Appeal 1 of 2021) [2023] KEELC 778 (KLR)

Environment and Land Court
15 February 2023
FNFred Nyagaka
7,103 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost his title claim because a neighbour's 12-year open occupation gave the neighbour ownership through adverse possession.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kitale against the judgment of the Kapenguria Senior Principal Magistrate's Court delivered on January 21, 2021, which dismissed the Appellant's claim for eviction and removal of caution over West Pokot/Keringet 'A'/1413 and allowed the Respondent's counterclaim for ownership by purchase and adverse possession. The Appellant, the registered proprietor since July 13, 2016 by transmission following succession to the estate of Cosmas Pkerkor Oreno, raised six grounds challenging the trial court's findings. The court, per Nyagaka J, applied the first-appeal principles in Gitobu Imanyara, Peters v Sunday Post and Abok James Odera, re-evaluating the evidence. It found the trial magistrate correctly held that the Appellant was the registered proprietor, but that the Appellant failed to prove the transmission process, having never produced the grant in Succession Cause No 6 of 2011, and that the green card relied on was merely marked for identification with nil evidentiary value. The court held that adverse possession runs against the land and not ownership, so the Appellant's 2016 transmission did not interrupt the Respondent's open, continuous and uninterrupted occupation since 1988, supported by a Land Control Board consent dated January 19, 1990. The claim for recovery was therefore extinguished under Sections 7 and 17 of the Limitation of Actions Act. All six grounds failed; the judgment of the lower court was upheld, the appeal dismissed with costs to the Respondent, and the original lower court file ordered returned.

Key legal issues

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01

Evidentiary status of documents marked for identification

Holding

A document marked DMFI but never produced and proved is not evidence on which a court can rely; however, the green card here was later produced as D Exhibit 2 when the Defendant testified

Reasoning

The Appellant relied on the green card marked DMFI(2) to prove transmission of title. The court held that until a document is formally produced and proved, its evidentiary value is nil, setting out the four steps of proving documents from Sofie Feis Caroline Lwangu v Benson Wafula Ndote. The court noted the document was ultimately produced as D Exhibit 2.

p. 6
02

Judicial notice of transmission forms RL 7 and RL 19

Holding

Judicial notice applies only to notorious, indisputable facts; the existence and use of transmission forms and succession proceedings required evidence, and the burden lay on the Appellant

Reasoning

The court applied Section 107 of the Evidence Act and Section 60(1)(a) on judicial notice, holding that transmission of title from the deceased's estate to the Appellant was not a notorious fact requiring no proof. The Appellant failed to produce the grant of letters of administration or prove the succession process, lending credence to the possibility of fraud.

p. 8
03

Adverse possession against registered title acquired by transmission

Holding

The Respondent proved open, continuous and uninterrupted occupation since 1988; the Appellant's registration in 2016 did not interrupt adverse possession, which runs with the land

Reasoning

The court found the Respondent occupied the land from 1988 with a Land Control Board consent dated January 19, 1990, built a house and planted trees, and that occupation was unshaken in cross-examination. Relying on Githu v Ndeete and Registered Trustee Catholic Diocese of Murang'a v Micere Njau, it held the 12-year period ran against the land regardless of change of ownership by transmission.

p. 9
04

Allocation of the burden of proof between the plaintiff's suit and the counterclaim

Holding

Each party bore the burden of proving its own case; the trial magistrate erred in appearing to place the burden on the Plaintiff to disprove fraud, but the error was not prejudicial

Reasoning

The court noted the trial magistrate appeared to require the Plaintiff to disprove fraud, which was a misdirection, but found the error did not affect the final findings on ownership and adverse possession and so did not vitiate the judgment.

p. 7

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the conclusions of the trial court stand, while making allowances for not having seen or heard the witnesses
  • Adverse possession runs against a specific parcel of land and not against ownership, and is unaffected by changes of title including transmission
  • A party seeking title by adverse possession must prove non-permissive, actual, open, notorious, exclusive and uninterrupted occupation for 12 years
  • A document merely filed or marked for identification but not produced in evidence has no evidentiary value
  • The burden of proof lies on the party who alleges; it never shifts to the rival party

Court orders

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  1. 1.The judgment of the lower Court in Kapenguria SPMC ELC No 23 of 2019 is upheld
  2. 2.The Appeal is dismissed with costs to the Respondent
  3. 3.The original Court file in Kapenguria SPMC ELC Case No 23 of 2019 to be returned to the said Court for further action

Authorities

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Legislation

  • Land Registration ActSections 24, 25, 26(1)(a)
  • Limitation of Actions ActSections 7, 13, 17, 38(1) and (2)
  • Evidence ActSections 60(1)(a), 65(5) and (6), 107
  • Constitution of Kenya, 2010Article 40

Cases cited (13)

  • Peter Lavatsa Kabwoya Vs Nicholas G Karira & Another
    [2021] eKLR
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2013] eKLR
  • Abok James Odera T/A AJ Odera & Associates v John Patrick Machira T/A Machira & Co Advocates
    [2013] eKLR
  • Farah Awad Gullet v CMC Motors Group Limited
    [2018] eKLR
  • Mbogo and Another v Shah
    [1968] EA 93
  • Gitobu Imanyara & 2 Others v Attorney General
    [2016] eKLR
  • Peters v Sunday Post Ltd
    [1958] EA 424
  • Jackson Kaio Kivuva v Penina Wanjiru Muchene
    [2019] eKLR
  • Sofie Feis Caroline Lwangu v Benson Wafula Ndote
    [2022] eKLR; also Lwangu v Ndote (Environment & Land Case 79 of 2010) [2021] KEELC 2 (KLR)
  • Registered Trustee Catholic Diocese of Murang’a v Micere Njau & 3 Others
    [2022] eKLR
  • Githu v Ndeete
    [1984] KLR 776
  • Titus Kigoro Munyi v Peter Mburu Kimani
    [2015] eKLR
  • Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 Others
    [2018] eKLR
On appeal from
Kapenguria Senior Principal Magistrate's Court
Kapenguria SPMC Land Case No 23 of 2019
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts in land matters

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, "Lomormoi v Lubusi (Environment and Land Appeal 1 of 2021) [2023] KEELC 778 (KLR)", Case Analysis (2023). ELC Appeal (Kitale) – arising from Kapenguria SPMC Land Case No 23 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/778/eng@2023-02-15

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