Registered Trustees Kisii Sports Club v Registered Trustees Lutheran Church of Kenya (Environment and Land Case 1148 of 2016) [2023] KEELC 898 (KLR)
The bottom line
#Kenya's Environment and Land Court in Kisii ruled the Lutheran Church owns the disputed parcel, but let Kisii Sports Club keep its golf course if it swaps an equivalent piece of land.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff acquired parcel 132 by adverse possession
No; the plaintiff did not prove dispossession of the registered owner or hostile acts, and the claim contradicted its trespass claim and was pleaded procedurally incorrectly
The court applied section 22 of the Land Registration Act presuming indefeasibility of the defendant's title and the Kasuve test for adverse possession. The plaintiff's simultaneous trespass claim defeated the prescription claim since adverse possession requires acknowledging the owner. The claim was also an afterthought added after the injunction application failed, and was not commenced by Originating Summons as required by section 38 of the Limitation of Actions Act and Order 37 rule 7.
Whether the defendant trespassed on parcel 207
No; parcel 132 is separately registered to the defendant and its occupation of it is not trespass
It was common ground the defendant was the registered proprietor of parcel 132, issued a Certificate of Lease on 30th June 1981. Under sections 22, 24 and 25 of the Land Registration Act, that registration vests absolute and indefeasible ownership. The County Surveyor's report confirmed parcel 132 is sandwiched between parcel 207 and a road, being a distinct parcel. Trespass therefore did not arise.
Relief on the defendant's Counterclaim
Declaration of lawful ownership granted, but tempered by an order that the plaintiff provide an alternative 0.2-hectare parcel within 120 days, failing which eviction is available
Given the club's century-long history and its significance to Kisii County and the public, the court invoked the wider interests of justice to order an equitable exchange rather than outright eviction. The surveyor's report confirmed parcel 132 sits within the golf course area, and the plaintiff had itself offered an alternative parcel of equal size in the same location away from the course.
Legal principles established
#- A claim of adverse possession cannot co-exist with a claim that the title holder is a trespasser; the adverse possessor must acknowledge the true owner
- Elements of adverse possession: exclusive, open possession as of right and without interruption for 12 years
- An application under section 38 of the Limitation of Actions Act for adverse possession must be made by Originating Summons under Order 37 rule 7 of the Civil Procedure Rules
Court orders
#- 1.A declaration that the defendant is the lawful owner of land parcel number Kisii Municipality/block 11/132
- 2.The plaintiff shall give the defendant an alternative piece of land measuring 0.2 hectares in the same location but away from the golf course in exchange for parcel number Kisii Municipality/block 11/132 within 120 days, failing which the defendant shall be at liberty to evict the plaintiff
- 3.The costs of the Plaint and Counterclaim shall be borne by the plaintiff
- 4.Each party is at liberty to apply
- Jurisdiction invoked
- Original civil suit under the Land Registration Act 2012 and Limitation of Actions Act before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Registered Trustees Kisii Sports Club v Registered Trustees Lutheran Church of Kenya (Environment and Land Case 1148 of 2016) [2023] KEELC 898 (KLR)", Case Analysis (2023). Kisii ELCC (original civil suit), plaint dated October 2, 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/898/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.