Bii (Suing as the administrator of the Estate of Kipleting Arap Bolyon) v Too
The bottom line
#The Environment and Land Court confirmed a registered owner's title and rejected a violent occupier's adverse possession claim, granting a permanent injunction instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved ownership of LR No Kericho/Kiptugumo/280
Yes - the title and official search proved the deceased Plaintiff was registered proprietor, vesting absolute ownership under Sections 24(a) and 26(1) of the Land Registration Act
The court noted the land was registered under the repealed Registered Land Act, now governed by the Land Act 2012 and Land Registration Act 2012. The title produced as Pf exh 1 and the search certificate showed registration to the deceased Plaintiff on June 21, 1976 with title issued August 29, 1996. Section 26(1) makes the certificate prima facie evidence of absolute and indefeasible ownership, and Section 24(a) vests absolute ownership on registration. The Defendant's presence without consent therefore constituted trespass.
Whether the 1974 sale agreement relied on by the Defendant was valid
No - the agreement was void ab initio because the deceased Plaintiff was not yet the registered proprietor when it was executed and had no title to pass
The sale agreement dated November 10/11, 1974 predated the Plaintiff's registration as proprietor on June 21, 1976, so he had no capacity to sell. The court also noted the agreement lacked a description of the property and there was no proof the instalments were paid. Relying on Mcfoy v United Africa Company Ltd, the court held a void act is a nullity, so the question of Land Control Board consent could not even arise.
Whether the Defendant acquired title by adverse possession
No - his possession was violent, not peaceful, open and continuous, and he had been dispossessed since 2011; the counterclaim was dismissed
The court found the Defendant's occupation was marked by acts of violence - burning the Plaintiff's house in 1973, demolishing structures in 1996 and 2011, and a conviction for forcible detainer. Possession must be nec vi, nec clam, nec precario. Equity will not assist one who gains advantage by violating the law (Gabriel Mbui v Mukindia Maranya). The Defendant also admitted the Plaintiff's representative had retaken possession and planted maize, so possession was neither continuous nor peaceful.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
- A party claiming adverse possession must prove possession that is peaceful, open and continuous - nec vi, nec clam, nec precario - and one who violently takes land cannot found title on adverse possession
- A void act is a nullity and no rights can be built upon it
Court orders
#- 1.The Defendant, by himself, agents, servants, employees or otherwise, is restrained from entering, remaining, cultivating, interfering with and or doing any other act prejudicial to the Plaintiff's quiet enjoyment and occupation of LR No Kericho/Kiptugumo/280
- 2.Costs of the suit and counterclaim awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over disputes relating to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bii (Suing as the administrator of the Estate of Kipleting Arap Bolyon) v Too", Case Analysis (2023). Environment & Land Case 86 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18357/eng@2023-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.