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ELCDismissedOriginating Summons dated 8th April 2020, as amended on 24th November 2021· [2024] KEELC 6613 (KLR)

Soi & another (Suing as the Personal Representatives of the Late Linah Chelangat Kirui) v Keriri & another (Enviromental and Land Originating Summons 124 of 2020) [2024] KEELC 6613 (KLR)

Environment and Land Court
11 October 2024
3,188 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost an adverse possession claim because he never formally asked the court to declare it and failed to attach the required title deed extract.

What this practically means

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Executive summary

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The Applicant, Eric Kiprotich Soi, suing as legal representative of the deceased Linah Chelangat Kirui, filed an amended originating summons seeking injunctive orders and costs over parcel LR No. 2327/28/1 (Original No. 2327/28/2). He claimed the deceased had been in continuous, uninterrupted possession since 1990, using the parcel as a garden, then a guard house and access road, and had acquired title by adverse possession; he further claimed to have invested Kshs 12,000,000 in improvements (a paved road, gate, guard house and security system) and alleged the Respondents were trespassing. The Respondents countered that the parcel was a road of access surrendered at subdivision to serve their properties, hence public land exclusively managed by the National Land Commission under Article 62 and 67 of the Constitution, incapable of adverse possession; that they had used it for over 15 years until the Applicant blocked it with a gate; and that the Applicant lacked locus standi and had not established a prima facie case. The court framed two issues: whether the Applicant proved his case to the required standard, and whether the reliefs were for granting. It found no evidence of compulsory acquisition, surrender, or classification of the road as a public road under Sections 8 and 9 of the Public Roads and Roads of Access Act, rejecting the public-land defence. However, the Applicant failed to furnish a title deed extract, and sought only a permanent injunction without expressly pleading a declaration of adverse possession. Dismissed in its entirety, with each party bearing their own costs.

Key legal issues

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01

Whether the suit property LR No. 2327/28/1 is a public road/public land

Holding

The court rejected the Respondents' contention that the access road was public land, finding no evidence of compulsory acquisition, surrender, or statutory classification as a public road.

Reasoning

The Respondents asserted that the strip was surrendered at subdivision as a road of access and thus public land under Article 62. The court found no evidence of compulsory acquisition or surrender for public use, and no application or classification under Sections 8 and 9 of the Public Roads and Roads of Access Act Cap 399. Section 13 provides a road of access shall not be deemed a public road absent such process. The public-land defence therefore failed.

p. 5
02

Whether the Applicant proved adverse possession and entitlement to a permanent injunction

Holding

The Applicant failed to prove his case to the required standard: he furnished no title deed extract and sought only an injunction without expressly pleading a declaration of adverse possession.

Reasoning

Although the Applicant claimed 12 years' possession since 1990, the ingredients of adverse possession (actual, visible, exclusive, open and notorious possession for 12 years) were not established to the court's satisfaction. He did not attach a title deed extract as required, and contrary to the rule that parties are bound by their pleadings, he sought a permanent injunction without seeking the declaration of adverse possession on which his claim rested. The injunction therefore could not issue.

p. 6

Legal principles established

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  • A party asserting title by adverse possession must furnish the court with a title deed extract
  • Parties are bound by their pleadings; a claimant cannot obtain relief not expressly pleaded
  • Land designated as an access road at subdivision does not become a public road absent evidence of compulsory acquisition, surrender, or classification under Sections 8 and 9 of the Public Roads and Roads of Access Act

Court orders

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  1. 1.The amended originating summons dated 24th November 2021 is dismissed in its entirety
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 62
  • Constitution of KenyaArticle 64
  • Constitution of KenyaArticle 67
  • Public Roads and Roads of Access ActSections 8, 9 and 13 (Cap 399)

Cases cited (10)

  • Dellian Langata Limited vs Symen Thuo Muhia & 4 Others
    Nairobi CA No 144 of 2014 (2018) eKLR
  • KipKirui Arap Koskei vs Philomen Kipsigei Targus & Another
    (2015) eKLR
  • Mary Njeru Gatuha & 3 Others vs George Muniu Mungai & 5 others
    (2017) eKLR
  • Mtana Lewa –v– Kahindi Ngala Mwangandi
    (2005) eKLR
  • Jandu –v– Kirplal & Another
    (1975) EA 225
  • Mbira –v– Gachuhi
    (2002) IEALR 137
  • Independent Electoral and Boundaries Commission & Another vs Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Ann Wairimu Wanjohi vs James Wambiru Mukabi
    [2021] eKLR
  • Daniel Otieno Migore versus South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Kenya Power & Lighting Co. Limited v Sherifi Molana Habib
    [2018] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land (adverse possession and injunction claim)

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, "Soi & another (Suing as the Personal Representatives of the Late Linah Chelangat Kirui) v Keriri & another (Enviromental and Land Originating Summons 124 of 2020) [2024] KEELC 6613 (KLR)", Case Analysis (2024). Originating Summons dated 8th April 2020, as amended on 24th November 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6613/eng@2024-10-11

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