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ELCPartially AllowedEnvironment and Land Case Civil Suit E007 of 2021· [2023] KEELC 21693 (KLR)

Serem v Serem

Environment and Land Court
23 November 2023
6,556 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kericho court ruled that a family member who openly occupied 3.8 acres of land for over 12 years owns it, despite the registered owner's title.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of LR No. Kericho/Kipchimchim/756 through transmission from her deceased husband Bernard Serem (who had been registered in 1988 in place of his father Kipserem Chepkwony), sued her brother-in-law, the Defendant, for eviction, a permanent injunction and mesne profits. The Defendant denied the claim and counterclaimed, asserting the land was family property fraudulently registered to Bernard, and claiming 3.8 acres he occupied. The court framed five issues. On fraud, it held the matter res judicata, the same issue between the same parties having been heard and dismissed in ELC Case No. 42 of 2014 (Paulo Kipserem A Chepkwony v Annah Chebet Serem), a decision not overturned on appeal. On family property, it held the Plaintiff's registered title was absolute and indefeasible under Section 26 of the Land Registration Act and the land was not part of the late Kipserem Chepkwony's estate. On the claim to 3.8 acres, the court found the Defendant had been in open, exclusive and hostile occupation since before 1988, building a permanent home and planting tea bushes over 20 years old; his possession was nec vi, nec clam, nec precario, and after 12 years the Plaintiff's title to that portion stood extinguished under Sections 7, 13 and 17 of the Limitation of Actions Act, with Section 38 permitting registration of the adverse possessor. The Plaintiff's suit was dismissed and the Defendant's counterclaim allowed: the Plaintiff was ordered to transfer 3.8 acres to the Defendant within 30 days, failing which the Deputy Registrar would execute the transfer documents. No costs were awarded as the parties are family members.

Key legal issues

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01

Res judicata on the issue of fraud

Holding

The Defendant's claim of fraudulent transfer of the suit land to Bernard Serem was res judicata, having been heard and dismissed in ELC Case No. 42 of 2014 (Paulo Kipserem A Chepkwony v Annah Chebet Serem)

Reasoning

The court applied the test of sameness of parties, title/claim, concurrence of jurisdiction and finality. The previous suit, between the same parties litigating under the same title, had fully tried the fraud allegation and dismissed it; that decision had not been overturned on appeal. The Defendant could not evade the doctrine by re-litigating the same issue in a counterclaim.

p. 8
02

Whether the suit property was family property forming part of the estate of the late Kipserem Chepkwony

Holding

No - the Plaintiff, registered through transmission, was the absolute and indefeasible owner under Section 26 of the Land Registration Act

Reasoning

Since fraud in the registration to Bernard had been negatived in the previous suit, the subsequent transmission to the Plaintiff was lawful. Her title could only be challenged on the grounds in Section 26(1)(a) and (b), both of which had been dealt with and not proved in the earlier suit.

03

Whether the Defendant was entitled to 3.8 acres by adverse possession

Holding

Yes - the Defendant proved actual, open, exclusive and hostile possession of 3.8 acres for well over 12 years, extinguishing the Plaintiff's title to that portion

Reasoning

The Defendant was born on the land, occupied 3.8 acres openly and exclusively, built a permanent home and planted tea bushes over 20 years old. The Plaintiff admitted he had been on the land since 1984. The possession was nec vi, nec clam, nec precario; upon expiry of 12 years the proprietor's title stood extinguished and Section 38 permits registration of the adverse possessor.

p. 11
04

Whether eviction and permanent injunction should issue

Holding

No - the suit was dismissed because the Defendant's adverse possession defeated the claim for eviction

Reasoning

Having found that the Defendant's occupation of 3.8 acres was adverse and had extinguished the Plaintiff's title to that portion, the Plaintiff could not obtain eviction or an injunction over land in which she no longer held title.

p. 12

Legal principles established

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  • A claim for adverse possession may properly be raised in a defence and counterclaim to an action for eviction; it need not be brought by originating summons
  • The combined effect of sections 7, 13 and 17 of the Limitation of Actions Act extinguishes the proprietor's title at the expiry of 12 years of adverse possession
  • An issue of fraud in the transfer of land already heard and finally decided between the same parties is res judicata and cannot be relitigated

Court orders

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  1. 1.The Plaintiff's suit is dismissed with no costs as these are family members
  2. 2.The Defendant's counterclaim that he is entitled to a share of 3.8 acres comprised in the subject property being No. Kericho/Kipchimchim/756 succeeds as prayed
  3. 3.The Plaintiff shall transfer a portion measuring 3.8 acres comprised in the subject property No. Kericho/Kipchimchim/756 to the Defendant at the latter's expense within 30 days from the date hereof failing which the Deputy Registrar of this court shall execute on behalf of the Defendant all the necessary transfer documents

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 37 Rule 7
  • Land Registration ActSections 24, 25, 26, 26(1)(a) & (b), 28
  • Limitation of Actions Act (Cap 22)Sections 7, 9, 13, 17, 37, 38, 28(h) (as cited by Defendant)

Cases cited (15)

  • Paulo Kipserem A Chepkwony v Annah Chebet Serem [2020] eKLR
    [2020] eKLR

    Previous suit between the same parties in which fraud in the transfer of the suit property was not proved and the suit was dismissed

  • Paul Muira & Another v Jane Kendi Ikinyua & 2 others [2014] eKLR
    [2014] eKLR

    Fraud must be distinctly proved, not merely pleaded

  • Musonga v Nyati [1984] KLR 425
    [1984] KLR 425

    Standard of proof of fraud is higher than a balance of probabilities

  • Benja Properties Limited v Syedna Mohamed Burhannudin Sahed & 4 Others [2015] eKLR
    [2015] eKLR

    Title by seisin/possession prevails against all who show no better right

  • Mtana Lewaa v Kahidi Ngala Mwagandi [2015] eKLR
    [2015] eKLR

    Legality and constitutionality of adverse possession as an overriding interest

  • Sarah Njeri Mwobi v John Kimani Njoroge [2013] eKLR
    [2013] eKLR

    Estoppel by conduct

  • Bernard Mugo Ndegwa -vs- James Nderitu Githae and 2 others (2010) eKLR
    (2010) eKLR

    Test for res judicata: sameness of parties, title/claim, jurisdiction and finality

  • E.T v Attorney General & Another (2012) eKLR
    (2012) eKLR

    Courts must guard against litigants evading res judicata by introducing new causes of action

  • Omondi v National Bank of Kenya Limited and others (2001) EA 177
    (2001) EA 177

    Parties cannot evade res judicata by adding other parties or causes of action

  • Njangu v Wambugu and another Nairobi HCCC No.2340 of 1991 (unreported)

    Kuloba J on the futility of relitigating the same issue with cosmetic face lifts

  • Gulam Mariam Noordin v Julius Charo Karisa, [2015] eKLR
    [2015] eKLR

    Adverse possession may be raised in a defence/counterclaim to an eviction suit; procedure flexible

  • Wabala v Okumu [1997] LLR 609 (CAK)
    [1997] LLR 609 (CAK)

    Court did not fault adverse possession pleaded in a defence to an eviction action

  • Bayete Co. Ltd v Kosgey [1998] LLR 813
    [1998] LLR 813

    Adverse possession granted even where not specifically pleaded

  • Teresa Wachika Gachira vs Joseph Mwangi, CA 325 of 2003
    CA 325 of 2003

    Onus on claimant to prove possession nec vi, nec clam, nec precario

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

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title and possession of land (Article 162(2)(b) of the Constitution, as the court is the Environment and Land Court at Kericho)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Serem v Serem", Case Analysis (2023). Environment and Land Case Civil Suit E007 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21693/eng@2023-11-23

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