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ELCDismissedEnvironment and Land Case 814 of 2017· [2024] KEELC 1502 (KLR)

Omare v Saleh & 3 others (Environment and Land Case 814 of 2017) [2024] KEELC 1502 (KLR)

Environment and Land Court
19 March 2024
MGM.N. Gicheru
1,758 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff filed an originating summons dated 30/6/2016 seeking a declaration that the defendants' right to recover LR 13977 Kajiado/Ngong was barred under Section 7 of the Limitation of Actions Act, and an order under Section 38 that he be registered as proprietor in their place. He claimed he had purchased part of the land from M.S. Chawla in 1980 with Olkejuado County Council's approval, and had occupied it openly, peacefully and as of right for over 12 years, and prayed to be declared owner of 0.35 acres. The defendants, registered proprietors of LR 13977 under a title dated 1/3/1990, opposed the summons through a replying affidavit by the third defendant, pointing to HCCC No. 6323 of 1991 (Nairobi) in which they had sued the plaintiff for eviction, a suit dismissed for want of prosecution on 16/6/2016. After a full trial, the court framed five issues including the exact acreage claimed, the defendants' registered ownership, and whether the occupation was nec vi, nec clam and nec precario. The court found the plaintiff's claim of 0.35 acres unexplained, the defendants' title prima facie valid under Section 26(1) of the Land Registration Act, and the plaintiff's occupation tainted with force because the 1991 eviction suit had challenged it, stopping time from running for its duration. Adverse possession was therefore not proved. The suit was dismissed and the court, invoking Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Section 3 of the Environment and Land Act, ordered the plaintiff's eviction from LR 13977 Ngong Town within 60 days unless he vacated voluntarily, with costs to the defendants.

Key legal issues

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01

Whether the plaintiff's occupation was adverse in character (nec vi, nec clam, nec precario)

Holding

The occupation was without secrecy and without permission but was with force because the defendants filed HCCC 6323 of 1991 challenging it; adverse possession therefore failed.

Reasoning

The 1991 plaint averred that the plaintiff started fencing the land in 1990 and persisted in trespass despite warnings. The suit lasted until 16/6/2016 when it was dismissed for want of prosecution. For that whole period time stopped running. Even if service of that suit was not proved, the existence of the suit made the occupation with force. The plaintiff therefore failed to prove occupation without force for 12 uninterrupted years and remains a trespasser.

02

Whether the defendants are the registered owners of LR 13977

Holding

The defendants are the registered owners; their certificate of title dated 1/3/1990 is prima facie evidence of ownership.

Reasoning

The plaintiff asserted the defendants' title was fake but admitted in cross-examination that he had brought no expert evidence to prove it. The court held that one who doubts a title should sue the genuine owners rather than claim adverse possession against the registered proprietors, and that a certificate of title is prima facie evidence under Section 26(1) of the Land Registration Act.

p. 4
03

Whether the plaintiff proved the size of the land he claims

Holding

The plaintiff did not come out clearly on the exact size; his claim of 0.35 acres exceeded the combined parcels of 0.2987 acres and was unexplained.

Reasoning

The plaintiff's own affidavit stated he bought 0.25 acres and that the defendants' parcel measures 0.0487 acres, totalling 0.2987 acres, yet he sought a declaration over 0.35 acres. The extra 0.0513 acres was unaccounted for, undermining the claim.

Legal principles established

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  • Adverse possession cannot be claimed against a title that is claimed to be defective.
  • Time does not run in favour of a person in adverse possession for the period a suit challenging that occupation is pending in court.
  • Occupation of land that is being challenged in court is occupation with force, even if the possessor was not served with the court process.
  • A certificate of title is prima facie evidence of ownership under Section 26(1) of the Land Registration Act.

Court orders

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  1. 1.Dismissal of the plaintiff's suit
  2. 2.That the plaintiff be evicted from the defendants' land, namely 13977 Ngong Town, on expiry of sixty (60) days if he does not vacate voluntarily therefrom
  3. 3.Costs to the defendants

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38
  • Land Registration ActSection 26(1)
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Environment and Land ActSection 3

Cases cited (1)

  • Haro Yonda Tuaje v Sadaka Dzengo Mbauro and another
    [2014] eKLR
Jurisdiction invoked
Limitation of Actions Act, Sections 7 and 38; Environment and Land Court 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, "Omare v Saleh & 3 others (Environment and Land Case 814 of 2017) [2024] KEELC 1502 (KLR)", Case Analysis (2024). Environment and Land Case 814 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1502/eng@2024-03-19

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