Kamau & others v Lendira & 36 others (Environment & Land Case 4 of 2022) [2024] KEELC 5060 (KLR)
The bottom line
#A Kenyan landowner with a title deed still lost eviction rights because occupiers had lived on the land openly for over twelve years.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs, as registered proprietors, are entitled to evict the Defendants
The Plaintiffs established their registered ownership, but eviction was refused because the Defendants proved adverse possession of the portions they occupy
The Plaintiffs produced certificates of title and subdivision correspondence establishing registration. However, evidence including the existence of Olgirgiri Primary School with about 700 pupils by 2011, permanent homes, churches and graves persuaded the court that the Defendants settled before 2002, exceeding twelve years by the time suit was filed. Eviction would displace a settled community of over 1000 families; instead, the occupied portions are to be excised and titled to the Defendants.
Whether the Defendants proved adverse possession despite the Plaintiffs' contention that their occupation was seasonal pastoralist grazing and not pegged to identified parcels
Adverse possession was proved for the portions actually occupied and developed, though the Plaintiffs' objection on identification of specific parcels had force
The court accepted that occupation denied the Plaintiffs use of the land, satisfying exclusivity and intention to possess, even though herders moved seasonally for pasture leaving women and children on the land. The court acknowledged difficulty in ascertaining which specific parcels each Defendant occupies, and resolved this by directing the County Surveyor and Land Registrar to excise the occupied portions for titling.
Whether the Defendants proved native title over the suit property
The claim of native title failed for want of evidence
Although defence witnesses asserted that the community were Laikipia Maasai, historically native owners of the region, no evidence was led to substantiate the native land claim. The court confined relief to adverse possession of the portions actually occupied and developed.
Legal principles established
#- To succeed on adverse possession, a claimant must prove exclusive, uninterrupted occupation for twelve or more years with the purpose of denying the registered owner's proprietary rights
- Registered proprietors' titles prevail only subject to overriding interests such as rights acquired under the Limitation of Actions Act; long occupation evidenced by permanent developments can found title by adverse possession
Court orders
#- 1.The County Surveyor and Land Registrar for Laikipia County directed to visit the suit property to survey and excise the specific portions where the Defendants' homes, homesteads, schools, churches and shopping centre are situated with a view to issuing titles for those portions to the Defendants, within 90 days, with a report to be filed in court
- 2.The County Commissioner to arrange for security during the survey exercise
- 3.The Defendants restrained from encroaching on or interfering with the Plaintiffs' occupation of the other portions of the suit property beyond the excised areas
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land disputes); suit transferred from Nyeri ELC to Nanyuki ELC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau & others v Lendira & 36 others (Environment & Land Case 4 of 2022) [2024] KEELC 5060 (KLR)", Case Analysis (2024). Nanyuki ELC No. 4 of 2022 (formerly Nyeri ELC No. 505 of 2014, consolidating Nyeri HCCC Nos. 18, 19, 21, 22, 23, 24, 25 and 26 of 2009 and Nyeri HCCC Nos. 31, 32, 33, 34, 35 and 36 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5060/eng@2024-06-28
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