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ELCAllowedOriginating Summons dated 18th May, 2023 (Kericho ELCC)· [2024] KEELC 3505 (KLR)

Byegon v Agricultural Finance Corporation (Enviromental and Land Originating Summons E006 of 2023) [2024] KEELC 3505 (KLR)

Environment and Land Court
2 May 2024
MOM. C. Oundo
2,634 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court gave a farmer legal ownership of land he had openly occupied and farmed for over 30 years, even though the title deed bore someone else's name.

What this practically means

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Executive summary

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By an Originating Summons dated 18th May 2023 under sections 3A and 80 of the Civil Procedure Act and Order 37 Rule 3 of the Civil Procedure Rules, the plaintiff sought declarations that he had regained proprietary rights over LR No. Kericho/Kipchorian/Lelu/Block 5(Kebeneti)/71 by adverse possession and that he be registered as proprietor. The defendant, his former employer, neither entered appearance nor filed a response, and the matter proceeded by formal proof on 7th February 2024. The plaintiff testified that he acquired title in 1992, took immediate possession, and that in 2001 the defendant transferred the title to itself without notice; nonetheless he remained in open, continuous and uninterrupted occupation for over 31 years, farming maize and keeping livestock, with no attempt at eviction. Relying on sections 7, 13, 37 and 38 of the Limitation of Actions Act and the Court of Appeal decisions in Wambugu v Njuguna and Samuel Kihamba v Mary Mbaisi, the court identified the elements of adverse possession as actual, open, exclusive and hostile possession for over twelve years. It found the plaintiff's uncontroverted evidence sufficient on a balance of probability and entered judgment for him: a declaration of title by adverse possession, an order that the land be registered in his name with transfer instruments to be signed by the defendant within 30 days, failing which the Deputy Registrar was authorized to sign, and costs to the plaintiff at a lower scale given the undefended nature of the suit. Judgment delivered at Naivasha on 2nd May 2024 by M.C. Oundo, Environment and Land Judge.

Key legal issues

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01

Whether the plaintiff acquired the suit land by adverse possession

Holding

Yes; the plaintiff proved open, continuous and uninterrupted occupation since 1992, exceeding the 12-year statutory period, and title by adverse possession was vested in him

Reasoning

The court applied section 7 of the Limitation of Actions Act and the Wambugu v Njuguna and Samuel Kihamba tests: dispossession or discontinuance by the owner and possession nec vi, nec clam, nec precario. The defendant entered no appearance and adduced no evidence. The plaintiff's uncontroverted evidence of farming and keeping livestock on the 25-acre land since 1992, both before and after the defendant's registration, discharged the burden on a balance of probability.

p. 5

Legal principles established

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  • A claimant seeking title by adverse possession must prove actual, open, exclusive and hostile possession for the statutory period of over 12 years

Court orders

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  1. 1.Declaration that the plaintiff has acquired title by adverse possession over LR No. Kericho/Kipchorian/Lelu/Block 5(Kebeneti)/71
  2. 2.The land be registered in the names of the plaintiff; the defendant to sign all necessary transfer instruments within 30 days, and in default the Deputy Registrar authorized to sign the same
  3. 3.Costs of the suit to the plaintiff at a lower scale since the suit was undefended
Jurisdiction invoked
Sections 3A and 80 of the Civil Procedure Act and Order 37 Rule 3 of the Civil Procedure Rules, 2010; Limitation of Actions Act (Cap 22), sections 7, 13, 37 and 38

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, "Byegon v Agricultural Finance Corporation (Enviromental and Land Originating Summons E006 of 2023) [2024] KEELC 3505 (KLR)", Case Analysis (2024). Originating Summons dated 18th May, 2023 (Kericho ELCC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3505/eng@2024-05-02

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