David Kiplimo Tuwei & 2 Others v Philip Tabut & 5 Others
The bottom line
#A Kenyan court ruled that occupation before land registration counts for nothing: you cannot claim ownership by long occupation of government land, and registered titles won.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs acquired their titles regularly and lawfully through adjudication
The Court found the Plaintiffs acquired good title procedurally through adjudication, free of fraud, based on the area list/adjudication register and the society minutes showing the 1st Defendant had sold his shares and been allotted plot No. 81 ex gratia.
PW4 explained that the 1st Defendant sold all 7 acres he was allotted, and the minutes of 2/12/1992 and 24/7/1995 corroborated this, showing he occupied land belonging to other members. The final area list compiled on 5/9/2016 captured the Plaintiffs' predecessors as allottees. The 4th and 5th Defendants' role was purely based on the adjudication register, so the fraud pleaded against them and the Plaintiffs was unproven.
Whether the 1st, 2nd and 3rd Defendants had acquired title by adverse possession
The claim of adverse possession failed. From 1964 to 2016 the block was government land, and under Section 41 of the Limitation of Actions Act time could not run against government land; upon registration in 2016 only 6 years had elapsed when the OS was filed, short of the 12-year requirement.
Both parties agreed the property was surrendered government land from 1964 to 2016 and that the Defendants resided on it during that period. The Court applied Section 41 of the Limitation of Actions Act barring acquisition of title over government land, and the principle that time runs from registration. The authorities relied on by the Defendants concerning squatters on public property were distinguished as the suit parcels became private property upon registration.
What reliefs ought to issue
The Plaintiffs' titles being indefeasible, they were granted permanent injunction and eviction orders subject to statutory notice under Section 152(E) of the Land Act; the counterclaim was dismissed and the case against the 4th, 5th and 6th Defendants dismissed.
Having found the titles procedurally acquired and free of fraud, the Court protected them under Sections 25 and 26 of the Land Registration Act. No wrongdoing was found against the 4th, 5th and 6th Defendants, so the case against them was dismissed. Eviction was made subject to issuance of the statutory 152(E) notice.
Legal principles established
#- Time for adverse possession starts running from the date of registration of the title holder.
- No title by adverse possession can be acquired over government land, Section 41 of the Limitation of Actions Act barring such acquisition.
- Titles regularly acquired through adjudication are indefeasible under Sections 25 and 26 of the Land Registration Act.
Court orders
#- 1.Permanent injunction restraining the 1st, 2nd and 3rd Defendants jointly and severally by themselves, their agents or servants from trespassing into Plaintiffs' parcels Songhor/Songhor Block 9 (Soysitet) 157, 162 and 160 after lapse of notice under Section 152(E) of the Land Act
- 2.Eviction of the 1st, 2nd and 3rd Defendants from the suit parcels after lapse of notice under Section 152(E) of the Land Act
- 3.Costs of the suit and counterclaim awarded to the Plaintiffs; the 4th, 5th and 6th Defendants awarded costs of the counterclaim
- Jurisdiction invoked
- Original civil jurisdiction over land matters; suit transferred from Kapsabet Chief Magistrate's Court to the Environment and Land Court by consent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kiplimo Tuwei & 2 Others v Philip Tabut & 5 Others", Case Analysis (2024). Kapsabet CM-ELC No. 58 of 2018 (transferred from Eldoret ELC No. 2 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/886/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.