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ELCPartially AllowedELC.E005 OF 2023 (Originating Summons dated 28th March, 2023)· [2024] KEELC 5604 (KLR)

Cheromei v Muigai (Environment & Land Case E005 of 2023) [2024] KEELC 5604 (KLR)

Environment and Land Court
25 July 2024
JOJ. M. Onyango
5,148 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan buyer who paid in full and lived on land for 12+ years won ownership through adverse possession, even though transfer was never completed.

What this practically means

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Executive summary

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The Applicant, Joseph Kiprotich Cheromei, filed an Originating Summons dated 28th March, 2023 seeking declarations of adverse possession over L.R. No. 11127/112 (Grant No. I.R. 47166, 6.646 Ha) registered in the name of the Respondent, Gitii Muigai. He deponed that he purchased the suit property for KShs.800,000/- on 24th October, 1995 under a written sale agreement, paid the full price, and took possession, erecting five permanent houses, fencing the land and farming it for about 28 years without interruption. The Respondent, who could not be traced, was served by substituted service (advertisement in the Daily Nation of 27th July, 2023) but did not enter an appearance or file a response; the suit proceeded by formal proof. The court framed three issues: whether adverse possession could arise from an agreement for sale, whether the threshold was met, and costs. Relying on Mtana Lewa, Gabriel Mbui, Sisto Wambugu and Peter Mbiri Michuki, the court held that although entry under a sale agreement is permissive, possession becomes adverse upon full payment of the purchase price. Time therefore began running on 24th October, 1995 and the 12-year period expired on 24th October, 2007, extinguishing the Respondent's title and making him a trustee for the Applicant. The photographs proved open, continuous and exclusive occupation, and the land was clearly identified. Judgment was entered for the Applicant as prayed: declarations of adverse possession, extinguishment of title and trust, registration of the Applicant as proprietor, and an order for execution of transfer instruments within 30 days, with the Deputy Registrar to execute in default. Because the Respondent could not be located, the court made no order as to costs.

Key legal issues

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01

Whether adverse possession can arise from an agreement for sale

Holding

Yes. A purchaser in possession under a sale agreement who pays the full purchase price holds adversely from the date of full payment; permission ends on receipt of the full purchase price.

Reasoning

Entry under a sale agreement is permissive, so time does not run while the licence subsists. Courts have held that the purchaser's possession becomes adverse once the purchase price is paid in full; where payment is by instalments, time runs from the last instalment. The Applicant paid KShs.800,000/- in full on 24th October, 1995, ending the permissive character of his occupation on that date.

p. 7
02

Whether the Applicant met the threshold for adverse possession

Holding

Yes. Possession was open, continuous, exclusive and non-permissive for over 12 years; the Respondent's title was extinguished on 24th October, 2007 and the Respondent became a trustee for the Applicant.

Reasoning

The prerequisites are that possession be neither by force nor stealth nor under licence, and be adequate in continuity, publicity and extent. Photographs of permanent houses, fencing, gate, crops and livestock proved actual, open and exclusive occupation. Twelve years from 24th October, 1995 expired on 24th October, 2007, well before the suit filed on 28th March, 2023, and the land claimed was clearly identified by title and sale agreement.

p. 7
03

Costs

Holding

Although the Applicant succeeded, no order as to costs was made because the Respondent could not be located.

Reasoning

Costs normally follow the event, but the Applicant had to serve the Respondent by substituted service after failing to trace him. An order for costs against a person who cannot be found would be an order in vain, so the court declined to make any order as to costs.

p. 9

Legal principles established

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  • Where a purchaser in possession under a sale agreement pays the purchase price in full, his possession becomes adverse and time runs from the date of full payment; on expiry of 12 years the vendor's title is extinguished and the vendor becomes a trustee of the title for the purchaser.
  • A purchaser who entered with the vendor's permission cannot claim adverse possession until the permission/licence is determined or repudiated.
  • Where the purchase price is payable in instalments, the limitation period starts on payment of the last instalment.

Court orders

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  1. 1.A declaration that the Applicant has been in open, continuous and uninterrupted possession and occupation of L.R. No. 11127/112 (Grant No. I.R. 47166, 6.646 Ha) for a period in excess of 12 years
  2. 2.A declaration that the Respondent's title over the suit land has been extinguished by virtue of the doctrine of adverse possession
  3. 3.A declaration that the title to the suit land is being held in trust by the Respondent for the Applicant
  4. 4.The Applicant be registered as the proprietor of the suit land in place of the Respondent
  5. 5.The Respondent to execute the requisite instruments of transfer of title within 30 days and in default the Deputy Registrar to execute the same
  6. 6.No order as to costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 37
  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSections 9, 10, 11 and 12
  • Limitation of Actions ActSection 18(4)

Cases cited (15)

  • Public Trustee vs Wanduru Ngegwa
    (1994) eKLR; also cited as (1984) KLR 314
  • Hosea vs Njiru & Others
    (1974) EA 526
  • James Maina Kinya vs Gerald Kwendaka
    (2018) eKLR
  • Samuel Kihamba vs Mary Mbaisi
    (2015) eKLR
  • Mtana Lewa vs Kahindi Ngala Mwangandi
    (2015) eKLR
  • Gabriel Mbui vs Mukindia Maranya
    (1993) eKLR
  • Sisto Wambugu vs Kamau Njuguna
    (1983) eKLR; also cited as Wambugu vs Njuguna [1983] KLR 173
  • Peter Mbiri Michuki vs Samuel Mugo Michuki
    (2014) eKLR
  • Mombasa Teachers Cooperative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others
    [2018] eKLR
  • Gatimu Kinguru vs Muya Gathangi
    (1976) KLR 253
  • Jandu vs Kirpal & Another
    (1975) EA 225
  • Kweyu v Omuto
    CA Civ Appeal 8 of 1990 (unreported)
  • Cobb v Lane
    [1952] 1 All ER 1199
  • Wallis's Cayton Bay Holiday Camp Ltd v Shell-Mex and B P Ltd
    [1974] 3 All ER 575
  • Wanyoike v Kahiri
    [1979] Kenya LR 236
Jurisdiction invoked
Section 38 of the Limitation of Actions Act, CAP 22 (adverse possession claim under the Originating Summons procedure)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Cheromei v Muigai (Environment & Land Case E005 of 2023) [2024] KEELC 5604 (KLR)", Case Analysis (2024). ELC.E005 OF 2023 (Originating Summons dated 28th March, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5604/eng@2024-07-25

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