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ELCDismissedEnvironment & Land Case 212 of 2013· [2023] KEELC 19046 (KLR)

Cherogony v Rono & 10 others

Environment and Land Court
26 July 2023
1,750 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to strike out an adverse possession claim filed too early, ruling the timing question must be decided at a full hearing.

What this practically means

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Executive summary

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The 10th defendant, David Mbugua Kahuria, applied to strike out the plaintiff's adverse possession suit on the ground that it was filed prematurely, before the expiry of the 12-year period under section 7 of the Limitation of Actions Act. He asserted he was the registered owner of Nakuru Municipality Block 29/1130 Ronda, having been registered on July 24, 2002, after the land was registered in the name of the Government of Kenya on March 29, 2000. He contended that no prescriptive rights can run against the Government as first registered owner, so the earliest the originating summons could have been filed was July 2014, whereas it was filed on February 22, 2013. The plaintiff replied that the issue had already been addressed in a ruling of February 13, 2019, in which he was given an opportunity to prove his case, and that the matter was part-heard, with one witness having testified and the District Land Registrar summoned. The court reviewed sections 7, 13(1), 37 and 41 of the Limitation of Actions Act, noting that adverse possession cannot be acquired over Government land. It accepted that time began running on July 9, 2002, making the February 22, 2013 filing premature. Nevertheless, exercising restraint consistent with its earlier ruling, the court declined to strike out the plaint, holding the prematurity conclusion was subject to a proper hearing. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether a suit for adverse possession filed before the expiry of 12 years is premature and liable to be struck out

Holding

The court found the suit was filed before the 12-year period expired but declined to strike it out, leaving the issue to be determined at the full hearing

Reasoning

The court accepted that the land was registered to the Government on March 29, 2000, and to the plaintiff on July 9, 2002, so the earliest filing date would be July 9, 2014. The February 22, 2013 filing was premature. However, the court had already, in a ruling of February 13, 2019, given the plaintiff an opportunity to prove his case, one witness had testified, and the court was reluctant to strike out the plaint for raising no cause of action.

p. 12
02

Whether prescriptive rights can run against the Government of Kenya

Holding

No - adverse possession cannot be claimed against the Government as first registered owner

Reasoning

Relying on section 41 of the Limitation of Actions Act, which excludes Government land from acquisition of title by adverse possession, the court held that time could not run against the Government from March 29, 2000, and therefore time began running only from the plaintiff's own registration on July 9, 2002.

p. 2

Legal principles established

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  • One cannot claim adverse possession against the Government of Kenya; where the land was first registered in the Government's name, time runs from the date of the claimant's own registration

Court orders

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  1. 1.The 10th defendant's application to strike out the suit is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 13(1)
  • Limitation of Actions Actsection 37
  • Limitation of Actions Actsection 41
  • Government Lands Actcap. 280
  • Registration of Titles Actcap. 281
  • Land Titles Actcap. 282
  • Registered Land Actcap. 300, section 120(8)
  • Mining ActCap. 306
  • Mineral Oil ActCap. 307
  • Water ActCap. 372
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over 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, "Cherogony v Rono & 10 others", Case Analysis (2023). Environment & Land Case 212 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19046/eng@2023-07-26

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