Chege & another v Kamau & another (Enviromental and Land Originating Summons E010 of 2023) [2024] KEELC 1825 (KLR)
The bottom line
#A Kenyan court dismissed a land buyers' adverse possession claim because they never paid the final instalment and couldn't prove open, exclusive possession.
What this practically means
#Executive summary
#Key legal issues
#Whether a certified extract of title is mandatory in an adverse possession claim
Although the Plaintiffs only annexed a Certificate of Official Search from 2001, the court treated it as prima facie evidence of ownership under section 35 of the Land Registration Act and held the land registered in the name of Francis Kamau Ezekiel (deceased) since 1996
Order 37 rule 7 requires a certified extract of title, which the Plaintiffs did not produce; the court noted the mandatory nature of the provision but took refuge in section 35(1) & (2) of the Land Registration Act, which presumes documents signed by a Registrar and receives certified copies as prima facie evidence. The Defendants did not deny the proprietorship shown in the search. The court found the suit land registered in the name of Francis Kamau Ezekiel (deceased), represented by the 2nd Defendant as administrator.
Whether entry through a sale agreement can ground adverse possession
Entry under a sale agreement is permissive and becomes adverse only upon payment of the last instalment; since a balance of Kshs 51,000/= remained unpaid, time never started to run
The Plaintiffs' alleged entry was through purchase under sale agreements dated 1997. Entry with the owner's consent or under an agreement for sale cannot be hostile. Time only begins to run on payment of the last instalment of the purchase price. The Plaintiffs admitted a balance of Kshs 51,000/= remained, to be paid upon Land Control Board consent, so limitation never began. Occupation by consent or licence accrues no right of adverse possession.
Whether the Plaintiffs proved actual, open and exclusive possession dispossessing the owner
The Plaintiffs failed to prove open, exclusive possession inconsistent with the owner's title; their evidence was uncorroborated and they failed to call independent witnesses, the agreement witness, or produce photographic or valuer's evidence
The claim was a word-against-word contest. The Plaintiffs did not call the witness to the sale agreement, Harun Irungu, or any neighbours or local administration to corroborate occupation. No photographic evidence or Land Valuer's report was produced to show activities inconsistent with the registered owner's possession. The Defendants' move to Nyahururu and leaving land unused did not amount to abandonment; occupation must be open and with the owner's knowledge for time to run.
Legal principles established
#- An Originating Summons for adverse possession must be supported by an affidavit to which a certified extract of title is annexed, and the requirement is mandatory
- In a purchase scenario, time for adverse possession runs only from payment of the last instalment of the purchase price
- A certificate of official search signed by a Registrar is prima facie evidence of its contents under section 35 of the Land Registration Act
Court orders
#- 1.The Originating Summons dated 13th April 2023 is dismissed entirely
- 2.Costs of the suit awarded to the Defendants
- Jurisdiction invoked
- Original jurisdiction under Order 37 Rule 7 of the Civil Procedure Rules and section 38 of the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege & another v Kamau & another (Enviromental and Land Originating Summons E010 of 2023) [2024] KEELC 1825 (KLR)", Case Analysis (2024). Originating Summons dated 13th April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1825/eng@2024-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.