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ELCAllowedOriginating Summons dated 25th October, 2021 (court number not stated in judgment)· [2024] KEELC 3723 (KLR)

Rorat v Kamoiro & another (Enviromental and Land Originating Summons E010 of 2021) [2024] KEELC 3723 (KLR)

High Court of Kenya (court not expressly named in the judgment; adverse possession jurisdiction under s.38 of the Limitation of Actions Act)
24 April 2024
6,251 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 buyer 16 acres of land after 20 years of open use, because the sellers slept on their rights.

What this practically means

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Executive summary

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The plaintiff filed an Originating Summons under Sections 17 and 38 of the Limitation of Actions Act, Section 17(d) of the Land Act and Order 37 Rule 7 of the Civil Procedure Rules seeking declarations that the defendants' title to 16 acres of Cis-Mara/Olorropil/234 had been extinguished by adverse possession and that he be registered as proprietor. He claimed he purchased the land from the 1st defendant under a sale agreement dated 4th December 1995, took possession pending adjudication, cleared the forest, cultivated, fenced and leased out portions, and had been in open, peaceful and continuous occupation for over 26 years. The defendants denied the 1995 agreement, asserted the suit land was parcel 641, and alleged the plaintiff invaded the land illegally in 2004 without paying the full purchase price. The suit proceeded by viva voce evidence. The court found both parties acknowledged a 1995 sale, that Kshs.170,000/= of the Kshs.192,000/= purchase price was paid, that no Land Control Board consent was obtained rendering the transaction void, and that the plaintiff was in open, continuous and exclusive use of the land from 2004 to the filing of suit while the defendants took little or no action to assert their rights. The 2nd defendant's lease narrative was rejected as unsupported. On a balance of probabilities the court entered judgment for the plaintiff: declaring the defendants' right to recover barred and title extinguished, ordering registration of the plaintiff as proprietor (or rectification of the register by the Narok Land Registrar), directing the defendants to execute transfer documents with the Deputy Registrar empowered to sign in default, and awarding the plaintiff costs.

Key legal issues

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01

Existence of a sale agreement between the parties

Holding

Both parties acknowledged a 1995 land sale agreement despite absence of the documentary 1995 agreement; the 2007 agreement acknowledged receipt of part of the balance

Reasoning

Although the 1995 agreement was not produced, the 1st defendant's letter of 6th May 2003 acknowledged the sale, PW1 witnessed money changing hands in 2007, and both parties admitted a 1995 agreement existed. The 1st defendant acknowledged receipt of Kshs.170,000/= of the Kshs.192,000/= purchase price, leaving a balance of Kshs.17,000/= to Kshs.20,000/=.

p. 9
02

Effect of failure to obtain Land Control Board consent

Holding

The transaction became void for want of Land Control Board consent within six months under section 6(1) of the Land Control Act

Reasoning

The court found that no consent was obtained from the Land Control Board within the six months stipulated by section 6(1) of the Land Control Act, rendering the transaction void. This supported the plaintiff's contention that time for limitation began to run once the agreement became null and void by operation of law.

p. 10
03

Whether the plaintiff proved adverse possession

Holding

Yes - the plaintiff was in open, continuous, exclusive possession from 2004 to the filing of suit, exceeding 12 years, while the defendants took little or no action to assert their rights

Reasoning

The court found the plaintiff used the property openly and notoriously, cultivated and leased it to third parties as late as 2021, and excluded the defendants. The 1st defendant admitted the plaintiff occupied from 2004 to 2018 without his permission, and that his first complaint letter was only in 2018, with no court case filed during that period.

p. 10
04

Credibility of the 2nd defendant's lease assertion

Holding

The court rejected the 2nd defendant's claim that the plaintiff leased the land, as there was no evidence of continued lease payments

Reasoning

The 2nd defendant claimed the plaintiff leased the land in 1995 at Kshs.5,000/=. The court held that if true, there was no evidence the defendants continued receiving lease payments up to the filing of the suit, so her evidence could not possibly be true.

p. 9

Legal principles established

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  • A claimant for adverse possession must prove the date of entry, the nature of possession, the owner's knowledge of it, its duration, and that it was open and undisturbed for the requisite 12 years
  • Possession to found adverse possession must be open, without force, secrecy or permission, with intention to possess (nec vi, nec clam, nec precario) plus animus possidendi

Court orders

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  1. 1.A declaration that the defendants' right to recover a portion measuring 16 acres of CIS-Mara Olorropil/234 is barred under the Limitation of Actions Act and their title over the suit property is extinguished
  2. 2.An order that the plaintiff be registered as proprietor of the 16-acre portion of parcel No. CIS-Mara Olorropil/234 in place of the defendants, and/or that the Narok Land Registrar rectify the register to reflect the plaintiff's ownership
  3. 3.An order that the defendants execute all papers necessary to have the plaintiff registered as proprietor, in default the Deputy Registrar to execute such documents
  4. 4.Costs of the originating summons to be borne by the defendants

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSection 37 (Cap 22)
  • Land ActSection 17(d)
  • Land Control ActSection 6(1)
  • Law of Contract ActSection 3(3)
  • Civil Procedure RulesOrder 37 Rule 7
  • Civil Procedure ActSection 3A

Cases cited (10)

  • Ruth Wangari Muigai versus Edward Njuguna Mwangi
    [2015] eKLR
  • Walter Kipchirchir Koech versus Tapnyobii w/o Melil & Another
    [2021] eKLR
  • Public Trustee versus Wanduru
    (1984) KLR
  • Tabitha Waitherero Kimani versus Joshua Ng'ang'a
    [2017] eKLR
  • Francis Gicharu Kariri versus Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Samuel Kihamba versus Mary Mbaisi
    Kisumu Civil Appeal No. 27 of 2013; [2015] eKLR
  • Stephen Mwangi Gatunge versus Edwin Onesmus Wanjau
    [2022] eKLR, Malindi App No. 56 of 2014
  • Mtana Lewa versus Kahindi Ngala Mwagandi
    [2015] eKLR
  • Mbira versus Gachuhi
    (2002) 1 EALR 137
  • Richard Wefwafwa Songoi versus Ben Munyifwa Songoi
    Kisumu Civ App. No. 110 of 2016; [2020] eKLR
Jurisdiction invoked
Sections 17 & 38 of the Limitation of Actions Act, Section 17(d) of the Land Act, Order 37 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure 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, "Rorat v Kamoiro & another (Enviromental and Land Originating Summons E010 of 2021) [2024] KEELC 3723 (KLR)", Case Analysis (2024). Originating Summons dated 25th October, 2021 (court number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3723/eng@2024-04-24

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