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ELCPartially Allowednot stated in the excerpt provided· [2024] KEELC 6408 (KLR)

Bundotich v Toroitich & another (Environment & Land Case 98 of 2020) [2024] KEELC 6408 (KLR)

Environment and Land Court
3 October 2024
EOE. O. Obaga
2,436 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret landowner evicted squatters and kept his title because the defendants couldn't prove 12 years of occupation or fraud in his purchase.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of land parcel Pioneer/Ngeria block 1 (EATEC)/14323, sued the Defendants for a declaration of ownership, vacant possession, eviction and a permanent injunction, alleging the Defendants entered the land in 2019 planting maize and in 2020 erected an unoccupied corrugated iron-sheet structure. The Defendants filed a defence and counter-claim contending that the suit was statute barred under the Limitation of Actions Act and that the 2nd Defendant had acquired the property by adverse possession since 2003 through her sister, the 1st Defendant, having purchased through Mosop Investment Limited. The court framed four issues: limitation/adverse possession, fraud in acquisition of title, entitlement to reliefs, and costs. On limitation, the court found the suit, filed on 12.11.2020, was not time-barred, as no evidence supported occupation from 2003; the 2nd Defendant only registered a caution on 21.9.2018 against the parent title, which had by then ceased to exist upon subdivision. On adverse possession, the Defendants failed to identify the portion occupied or prove nec vi, nec clam, nec precario occupation with animus possidendi; the Plaintiff found the land vacant. On fraud, the counter-claim alleged capacity defects in unnamed entities without particulars or proof, and the court found the Plaintiff a genuine purchaser whose title was prima facie and indefeasible under section 26(1) of the Land Registration Act. The Plaintiff's claim was allowed in full in terms of prayers (a) to (e), the counter-claim was dismissed with costs. Judgment delivered at Eldoret on 3 October 2024 by E. O. Obaga, Judge.

Key legal issues

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01

Whether the Plaintiff's suit was statute barred under section 7 of the Limitation of Actions Act

Holding

The suit was not statute barred as it was filed on 12.11.2020, well within the limitation period

Reasoning

The Defendants asserted occupation from 2003, but there was no evidence the 2nd Defendant purchased the property from Mosop Investment Limited or that the Defendants occupied from 2003. The Plaintiff purchased on 7 December 2018, took title on 26.9.2019 and filed suit on 12.11.2020; limitation had not run against him.

p. 5
02

Whether the 2nd Defendant acquired the suit property by adverse possession

Holding

The claim failed; adverse possession was not proved

Reasoning

No clear evidence that the 2nd Defendant through the 1st Defendant took possession in 2003. The Plaintiff found the property vacant; the Defendants entered in 2019/2020, cultivated it, and their attempted occupation of an iron-sheet structure was resisted. The Defendants did not identify the portion occupied. The elements in Gabriel Mbui were not established.

p. 5
03

Whether the Plaintiff obtained his title fraudulently

Holding

The Plaintiff acquired his title genuinely; no fraud was pleaded with particulars or proved

Reasoning

The counter-claim alleged capacity defects in entities up the chain but named none and listed no particulars. The Plaintiff purchased from John Kiptoo Kibor on 7.12.2018 and title issued on 26.9.2019. No evidence of fraud or a corrupt scheme emerged, so the registered title stood as prima facie and indefeasible.

p. 6

Legal principles established

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  • Adverse possession must be proved as a matter of fact with a clear intention to hold adversely and under a claim of right; mere exclusive possession for over twelve years is not sufficient
  • Fraud must be specifically pleaded and strictly proved to a standard higher than the balance of probabilities
  • A registered title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation or illegal/unprocedural acquisition

Court orders

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  1. 1.The Defendants' counter-claim is dismissed with costs
  2. 2.The Plaintiff's claim is allowed in terms of prayers (a)(b)(c)(d) and (e), namely: a declaration that land parcel Pioneer/Ngeria block 1 (EATEC)/14323 belongs to the Plaintiff and that the Defendants' occupation is unlawful; an order for vacant possession; an order of eviction of the Defendants; a permanent injunction restraining the Defendants from interfering with the Plaintiff's use of the suit land; and costs

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Land Registration Actsection 26(1)(a) and (b)

Cases cited (8)

  • Katende –Vs- Haridar & Company Limited
    (2008) 2EA 173
  • Weston Gitonga & 10 others –vs- Peter Rugu Gukanga & another
    (2017) eKLR, Nakuru Court of Appeal No. 291 of 2013
  • Emfil Limited –vs- Registrar of Titles Mombasa & 2 others
    (2014) eKLR
  • Samuel Kihamba –vs- Mary Mbaisi
    (2015) eKLR
  • Dickson Ngige Ngugi –Vs- Consolidated Bank Ltd (formerly Jimba Credit Corporation Limited and another)
    (2020) eKLR
  • Mehta –vs- Shah
    (1965) EA 321
  • Gabrial Mbui – Vs- Mukindia Maranya
    (1993) eKLR
  • Bishopsgate Motor Finance Corporation Ltd –vs- Transport Brakes Ltd
    (1949) IKB 322
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership and occupation of land

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, "Bundotich v Toroitich & another (Environment & Land Case 98 of 2020) [2024] KEELC 6408 (KLR)", Case Analysis (2024). not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6408/eng@2024-10-03

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