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ELCDismissedEnvironment & Land Case 52 of 2019· [2023] KEELC 20254 (KLR)

Rotich v Chepkoskei & 3 others

Environment and Land Court of Kenya
28 September 2023
9,031 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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A Kericho court dismissed a 24-year adverse possession claim because the claimant never attached a certified title extract proving who owned the land.

What this practically means

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Executive summary

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The plaintiff, Ezekiel Kipkorir Rotich, brought an Amended Originating Summons under Order 37 of the Civil Procedure Rules and Sections 37 and 38 of the Limitation of Actions Act, seeking to be registered as proprietor of L.R No. Kericho/Kipchorian/Lelu Block 8 (Songonyet)/153, later subdivided into parcels 255, 256 and 257, by adverse possession. His case was that in 1998 he and the late Musee arap Mosonik orally exchanged land: he moved onto the deceased's 16-acre parcel in 1999 while the deceased and his son, the 3rd Defendant, moved onto his Block 5 (Monori)/35. He developed the suit land, planting trees and coffee and building a pulping factory, and remained undisturbed until 2018 when the estate administrators subdivided the land following Kericho High Court Succession Cause No. 11 of 2007. The 1st Defendant, a daughter of the deceased, acknowledged his occupation but asserted it was as licensee of the 3rd Defendant's 7½-acre share, with the 4th Defendant holding 1 acre; she also challenged the competence of the suit for failure to annex a certified extract of title. The 2nd and 3rd Defendants did not participate. Oundo J held that Order 37 Rule 7(2) mandatorily requires annexation of the register extract, which shows the land's history and entries against which time cannot run. The plaintiff annexed and produced no title document, so the registered proprietor could not be established and adversity could not be proved against a known owner. The court also noted that succession proceedings were filed in 2007 before 12 years had elapsed, so the deceased's interest formed part of the estate. The suit was dismissed with costs to the 1st Defendant.

Key legal issues

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01

Competency of an adverse possession suit without a certified extract of title

Holding

The suit fails because the plaintiff did not annex or produce a certified extract of the title or register, so the registered proprietor could not be established

Reasoning

Order 37 Rule 7(2) mandatorily requires the extract of the register to be annexed because it shows the history of the land; some entries (e.g. Settlement Fund Trustee) stop time running. Without the register the court cannot tell against whom time ran or whether the plaintiff is disentitled. Parties are held to their pleadings, and adversity cannot be established in a vacuum.

p. 14
02

Whether the plaintiff proved adverse possession over the whole 16 acres

Holding

No. The claim was contested: the defence asserted the plaintiff occupied only the 3rd Defendant's 7½-acre share under an exchange, and the 4th Defendant occupied 1 acre, defeating exclusivity over the whole parcel

Reasoning

The court found the contested issue was whether the exchange agreement existed and entitled the plaintiff to the whole parcel. The 4th Defendant was in occupation of 1 acre throughout, and the defence case was that the plaintiff held only the 3rd Defendant's share. The claim also failed on the missing title extract.

p. 13
03

Effect of the deceased's death and succession proceedings on the adverse possession claim

Holding

At the time succession proceedings were instituted in 2007, the plaintiff had not occupied for 12 years, so the deceased's interest formed part of the estate

Reasoning

The plaintiff entered in 1999 and the deceased died in 2003, four years into occupation. Succession Cause No. 11 of 2007 was filed before 12 years had elapsed, so the land was properly distributed to the beneficiaries and subdivided in 2018 while the plaintiff was in occupation.

p. 14

Legal principles established

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  • An adverse possession claimant must annex a certified extract of the title/register to the Originating Summons, as adversity must be established against a known registered owner
  • The burden is on the adverse possession claimant to prove the statutory period, that possession was without the true owner's permission, and acts inconsistent with the owner's enjoyment of the soil

Court orders

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  1. 1.The suit is dismissed
  2. 2.Costs of the suit awarded to the 1st Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rules 1(a) and (g), 2(b) and (c), 7 and 7(2)
  • Civil Procedure ActSections 3A and 63(e)
  • Limitation of Actions Act (Cap 22)Sections 7, 13, 17, 18(1), 37, 38(1) and (2), 41
  • Land Act, 2012Section 7
  • Land Registration Act, 2012Sections 28(h) and 80(1)
  • Evidence ActSection 107
  • Law of Contract ActSection 3
  • Constitution of KenyaArticle 40

Cases cited (11)

  • Wilson Njoroge Kamau vs. Nganga Muceru Kamau
    [2020] eKLR

    Principles of adverse possession, quoting Kasuve vs. Mwaani Investments

  • Kasuve vs. Mwaani Investments Limited & 4 Others
    (2004) 1 KLR

    Requirements of adverse possession

  • Maweu v Liu Ranching & Farming Cooperative Society
    [1985] eKLR

    Adverse possession attaches to the land, not title

  • Celina Muthoni Kithinji vs. Safiya Binti Swaleh & 8 others
    [2018] eKLR

    Proof of adverse possession is dispossession or discontinuance by the title holder for the statutory period

  • Elizabeth Cheptoo Tuimising vs. Jane Cherono Ngeno & Another
    [2016] eKLR

    Incompetence of adverse possession suit without certified extract of title

  • Andrew Likaibua Kathuku alias Nguga M'kaibi vs Jacob Miriti Kaaria & 2 Others
    [2019] eKLR

    Requirement of annexing certified extract of register

  • Ruth Wangari Kanyagia vs. Josephine Muthoni Kinyanjui
    [2017] eKLR

    Adverse possession must be without the consent and/or licence of the registered owner

  • Johana Kipkurui Rotich vs. Charles Kiagi
    [2019] eKLR

    Need to annex extract of title; categories of land where time does not run

  • Benjamin Kamau Murma & Others vs Gladys Njeri
    C A No. 213 of 1996

    Sections 7, 13 and 17 of the Limitation of Actions Act extinguish the proprietor's title after 12 years of adverse possession

  • Titus Kigoro Munyi v. Peter Mburu Kimani
    (2015) eKLR

    Prescription affects present holders of title and their predecessors

  • Peter Kamau Njau v Emmanuel Charo Tinga
    [2016] eKLR

    Adverse possession claim lies only against the proprietor of the suit land

Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act (Cap 22) and Order 37 rules 1, 2 and 7 of the Civil Procedure Rules, read with Section 3A & 63(e) of the Civil Procedure Act

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, "Rotich v Chepkoskei & 3 others", Case Analysis (2023). Environment & Land Case 52 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20254/eng@2023-09-28

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