Olesopia alias Simon Sopia & another (Suing as legal administrators of the Estate of Kamur Ole Tierikat (Deceased) v Letiepoon alias Tiepon Olekitui (Enviromental and Land Originating Summons 35 of 2021) [2024] KEELC 4483 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Date the Plaintiffs (through the deceased) came into possession
The Court found the deceased took possession of the 10 acres in 1992 pursuant to the Agreement for Sale, which the Court found genuine; the Defendant's bare denial did not discharge the shifted burden of disproving it
The Plaintiffs produced the Agreement for Sale dated 10.08.1992 as Plaintiff Exhibit 3. The Defendant disputed it but gave no reasons and took no proactive steps such as a document examiner's report or calling his wife, a witness to the agreement. Under Section 107 of the Evidence Act, once the Plaintiffs produced the agreement, the burden shifted to the Defendant, whose pleadings and testimony remained a mere denial.
Nature of the possession - licence or adverse possession
The deceased's possession was under a licence emanating from the Agreement for Sale because payment of the balance of 3 herds of cattle was not proved; hence the possession was not adverse
The Agreement for Sale showed a balance of 3 herds of cows remained outstanding. Although PW1 and PW2 testified the purchase price was fully settled, neither gave the date or manner of settling the balance. Following Wambugu v Njuguna and Simon Nganga Njoroge v Daniel Kinyua Mwangi, possession under a pending sale agreement is deemed adverse only after payment of the last instalment, so time under the Limitation of Actions Act could not run.
Whether the Defendant is entitled to eviction and permanent injunction in the Counter-claim
The Counter-claim fails because the Agreement for Sale of 1992 is valid, binding and not terminated, giving the estate a lawful interest in the 10 acres
The Court had found the Agreement for Sale valid. The agreement did not provide for a completion period or termination mechanism, so the Court could not order eviction while the agreement remained operational between the parties. The Plaintiffs are entitled to use and occupation of the 10 acres pending completion of the terms of the agreement or its proper termination by the parties or a court of competent jurisdiction.
Costs of the OS and the Counter-claim
Neither party succeeded; each party to bear its own costs
Costs follow the outcome. The Plaintiffs did not succeed in prosecuting their claim against the Defendant, and the Defendant was likewise unsuccessful in the Counter-claim. It was therefore reasonable that each party bear its own costs.
Legal principles established
#- Where a claimant pleads the right to land under an agreement and in the alternative seeks an order based on subsequent adverse possession, the claimant's possession becomes adverse only after payment of the last instalment of the purchase price
Court orders
#- 1.The Originating Summons dated 25.07.2019 be and is hereby dismissed.
- 2.The Counter-claim dated 10.07.2023 is dismissed as well.
- 3.The Estate of the late Kamur Ole Tierikat and by extension the Plaintiffs are entitled to and granted quiet possession and/or occupation of 10 acres within LR.NO.Transmara/Shartuka/97 pending either completion of the terms in the Agreement for Sale dated 10.08.1992 or a lawful termination of the same by either the parties and/or a court of competent jurisdiction.
- 4.The Defendant is directed to observe peace and compliance with Order C and to desist from destroying, cutting, burning, demolishing and/or interfering with the Plaintiffs' occupation and/or possession of the 10 acres provided in the Agreement for Sale dated 10.08.1992 until the said Agreement is either completed and/or lawfully terminated.
- 5.Each party will bear its own costs.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) invoking Section 38 of the Limitation of Actions Act, Cap 22 and Section 37 Rules 7 & 14 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olesopia alias Simon Sopia & another (Suing as legal administrators of the Estate of Kamur Ole Tierikat (Deceased) v Letiepoon alias Tiepon Olekitui (Enviromental and Land Originating Summons 35 of 2021) [2024] KEELC 4483 (KLR)", Case Analysis (2024). Originating Summons dated 25.07.2019, ELC Kilgoris. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4483/eng@2024-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.