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ELCDismissedNakuru ELC Case No. 33 of 2019 (O.S)· [2024] KEELC 346 (KLR)

Serah S Shiloo Tipis & Anor v Lemerian Ole Moijoi & 4 Others

Environment and Land Court
31 January 2024
5,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nakuru dismissed a family's claim to group ranch land because permission to occupy defeated their adverse possession claim.

What this practically means

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Executive summary

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The plaintiffs, widow and son of the late Justus Kantet Ole Tipis, brought an Originating Summons under Order 37 rule 7 of the Civil Procedure Rules claiming adverse possession, trust and gift over parcels carved out of Lemek Group Ranch land (LR Cis-Mara/Lemek/1757, 1851, 1861, 1862, 1863 and 1864), alleging the family had occupied an unregistered portion adjacent to LR Cis-Mara/Lemek/161 since about 1971. They sought declarations that the defendants' titles were held in trust, registration of the plaintiffs as proprietors, and a permanent injunction. The defendants denied the allocation, contended they were lawful members or allottees of the group ranch, and asserted distinct, properly registered titles. The court framed three issues: adverse possession, constructive trust, and fraud. Applying five conditions for adverse possession, it held the limitation period began on registration of the group ranch title on 21st July 1992 and would only lapse in 2004, three years after the suit was filed in 2001; the plaintiffs' occupation was permissive, granted because Ole Tipis' allocated parcel was flood-prone; and possession was neither continuous, exclusive nor actual. On trust, the alleged allocation to Justus Ole Tipis was not procedural: he was not a member of the group ranch and the minutes did not establish the quorum required by section 15 of the Land (Group Representatives) Act (repealed). The fraud claim failed as it was improperly pleaded in an originating summons and not strictly proved; the defendants' registered titles were protected by sections 25(1) and 26(1) of the Land Registration Act. The suit was dismissed with costs.

Key legal issues

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01

Whether the plaintiffs proved adverse possession

Holding

Adverse possession failed: the register opened on 21st July 1992 and 12 years would only lapse in 2004, but the suit was filed in 2001; occupation was permissive; and possession was neither continuous, exclusive nor actual.

Reasoning

The court adopted five conditions for adverse possession. The limitation period began on registration of Lemek Group Ranch in 1992 and had not run its full 12 years when the suit was filed in 2001. The plaintiffs' occupation was permissive, granted by the group ranch because Ole Tipis' allocated parcel was flood-prone, defeating the hostile/non-permissive element. The defendants also demonstrated intermittent possession and ejection, negating continuous and exclusive use, and the land showed no evidence of actual possession such as cultivation or improvement by the plaintiffs.

p. 7
02

Whether a constructive or resulting trust was established

Holding

No trust was established because the alleged allocation/gift of the land to Justus Ole Tipis was not proved to have been lawfully made.

Reasoning

The court set out the law on implied trusts and found that Justus Ole Tipis was not a member of Lemek Group Ranch and so was not entitled to allocation. The minutes of the alleged meeting did not disclose attendance numbers or notice, and no quorum of 60% was shown as required by section 15 of the Land (Group Representatives) Act (repealed), so the allocation was not procedural and no trust could arise.

p. 9
03

Whether the defendants' titles were procured through fraud

Holding

The fraud claim failed: fraud was improperly and insufficiently pleaded in an originating summons and, in any event, was not strictly proved.

Reasoning

The court found the particulars of fraud were not clearly brought out in the originating summons and that it is improper to plead fraud in an originating summons for adverse possession. Even if properly before the court, fraud requires strict proof to a higher standard, citing Kuria Kiarie; the plaintiffs did not discharge that burden, and the defendants' titles enjoy the indefeasibility protections of sections 25(1) and 26(1) of the Land Registration Act.

p. 9

Legal principles established

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  • A claim of adverse possession fails where the claimant entered and remained on the land with the permission of the owner, and possession does not become adverse before the end of the permitted period.
  • A claimant cannot simultaneously plead adverse possession and assert a gift or allocation of the same land; the two bases of claim are inconsistent.
  • Allegations of fraud must be specifically pleaded and strictly proved to a standard higher than a balance of probabilities.
  • Group ranch land allocation decisions required compliance with the quorum and resolution requirements of section 15 of the Land (Group Representatives) Act (repealed).

Court orders

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  1. 1.The plaintiffs' claim is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rule 7
  • Land Control Actsection 6(3)
  • Evidence Actsection 107
  • Land (Group Representatives) Act (repealed)section 15(5), (6) and (7)
  • Land Registration Actsection 25(1)
  • Land Registration Actsection 26(1)
  • Trustee Actdefinitions of trust and trustee

Cases cited (8)

  • Maweu vs Liu Ranching & Farming Co-operative Society Ltd
    (1985) KLR 432
  • Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau
    [2013] eKLR
  • Samuel Kihamba v Mary Mbaisi
    [2015] eKLR (Kisumu Civil Appeal No. 27 of 2013)
  • Samuel Miki Waweru vs Jane Njeru Richu
    Civil Appeal No. 122 of 2001
  • Jandu v Kirpal
    [1975] EA 225
  • Twalib Hatayan Twalib Hatayan & Anor vs Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR
  • Kuria Kiarie & 2 Others v Sammy Magera
    [2018] eKLR
  • Ndolo vs Ndolo
    (2008) 1 KLR (G & F) 742
Jurisdiction invoked
Original jurisdiction under Order 37 rule 7 of the Civil Procedure Rules (adverse possession), as ELC successor to High Court Civil Case No. 411 of 2001 (O.S)

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, "Serah S Shiloo Tipis & Anor v Lemerian Ole Moijoi & 4 Others", Case Analysis (2024). Nakuru ELC Case No. 33 of 2019 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/346/eng@2024-01-31

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