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ELCDismissedOriginating Summons dated 09.11.2022 (Kilgoris ELC)· [2024] KEELC 662 (KLR)

Sireo v Seriani & 3 others (Environment and Land Case E006 of 2022) [2024] KEELC 662 (KLR)

Environment and Land Court of Kenya
15 February 2024
EWEmmanuel M. Washe
5,013 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 Kilgoris dismissed a 41-year adverse possession claim because the claimant, who entered the land as a toddler, couldn't prove open, defined possession.

What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons dated 9 November 2022 seeking a declaration that the Defendants' (particularly the 4th Defendant's) right to recover 35 acres out of LR No Transmara/Poroko/107 was barred under the Limitation of Actions Act, an order registering him as proprietor of that portion, an injunction, and execution of transfer documents. He claimed his deceased father purchased a portion of the land in 1981 from the late Chemoiywa Ole Siriani (father of the 1st to 3rd Defendants) for 12 cows, took possession, and that the family had occupied the land openly and peacefully for 41 years. The Defendants denied his occupation; the 4th Defendant, a company, purchased the entire approximately 65-acre property from the 1st to 3rd Defendants in 2015 and charged it to Family Bank; related litigation by Michael Ole Kisasi over 35 acres resulted in a judgment stayed pending appeal. At trial the Plaintiff and his step-brother testified about the oral purchase and long occupation, but the Plaintiff produced no written sale agreement, no letters of administration, and no proof he was a biological son of the purchaser. The court framed one issue: whether the Plaintiff satisfied the ingredients of adverse possession, applying Mtana Lewa and Richard Wefwafwa Songoi. It held that a two-year-old could not possess with intent to dispossess, so time in his own capacity could only run from 1997 when he attained majority; that he failed to prove possession of 22 or 35 acres; and that knowledge and openness of possession were not proved. The Originating Summons was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the Plaintiff proved the ingredients of adverse possession

Holding

The claim failed on all ingredients: the Plaintiff entered the land as a minor in 1981 (possession in his own capacity computed only from 1997 on attaining majority), failed to prove the acreage in possession (22 acres testified vs 35 acres pleaded, photos showing under an acre), failed to prove possession known to the registered owners, and consequently could not prove 12 years of open and undisturbed possession

Reasoning

The court adopted the Mtana Lewa ingredients and the Richard Wefwafwa Songoi principles. On the first ingredient, a two-year-old cannot have the intention to dispossess; the Plaintiff's possession in his own capacity could only begin in 1997 upon attaining majority. On nature of possession, the pleaded 35 acres shrank to 22 acres in testimony and photographs showed less than an acre of development; no sale agreement or sketch map was produced. Burial sites were not proved photographically. Without proof of possession and its extent, duration and openness could not be established.

p. 9

Legal principles established

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  • A minor cannot take possession of land with the animus possidendi required for adverse possession; time begins to run only when the plaintiff attains capacity (majority at 18 years)
  • Where a deceased purchaser's estate and the beneficiary each could claim the same portion, time cannot run in the beneficiary's own capacity before the purchaser's death
  • He who alleges must prove; a plaintiff claiming adverse possession must prove the fact and extent of possession (Section 107, Evidence Act)

Court orders

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  1. 1.The originating summons dated 09.11.2022 is not merited and therefore dismissed forthwith
  2. 2.The plaintiff shall meet the costs of the originating summons dated 09.11.2022

Authorities

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Legislation

  • Limitation of Actions ActChapter 22 Laws of Kenya
  • Evidence ActSection 107

Cases cited (2)

  • Mtana Lewa v Kahindi Ngala Mwagandi
    (2015) eKLR
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    Civil Application No.110 Of 2016 (2020) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act, Chapter 22 Laws of Kenya (adverse possession claim)

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, "Sireo v Seriani & 3 others (Environment and Land Case E006 of 2022) [2024] KEELC 662 (KLR)", Case Analysis (2024). Originating Summons dated 09.11.2022 (Kilgoris ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/662/eng@2024-02-15

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