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ELCPartially AllowedOriginating Summons (Eldoret)· [2024] KEELC 6981 (KLR)

Mosbey & 6 others v Busienei & 2 others (Enviromental and Land Originating Summons E019 of 2022) [2024] KEELC 6981 (KLR)

Environment and Land Court
24 October 2024
1,857 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicants filed an Originating Summons seeking declarations that they had acquired portions of Moiben/Moiben Block 2 (Segero) 1472, 1473 and 1474 by adverse possession, that the Respondents' titles were extinguished, that the Respondents held the land in trust for them, and orders for cancellation of registration and transfer. The parcels arose from subdivision by the 1st Respondent of the parent parcel 154, portions of which he had sold to the Applicants between 1989 and 2018. The 1st Respondent initially admitted the sales in an affidavit but later contradicted himself. The Respondents and their counsel failed to attend the hearing, which proceeded ex parte; an application to set aside the ex parte proceedings was dismissed. The court emphasised that even on formal proof the Applicants had to prove their claims to the required standard. The 1st Applicant proved 2.4 acres (not the 2.5 pleaded), the 3rd Applicant one acre plus 0.1 admitted, the 5th Applicant 0.7 of an acre cumulatively with her son, and the 6th Applicant one acre as admitted. The 5th Applicant's claim to 0.1 of an acre bought in 2018 failed for want of 12 years' occupation. Relying on the Catholic Diocese of Muranga authority, the court held that subdivision and change of title did not stop time running. The court declared title by adverse possession over the proved acreages, ordered the Respondents to execute transfer documents within 60 days, failing which the Deputy Registrar was empowered to execute them, and awarded costs to the Applicants.

Key legal issues

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01

Whether claims by purchasers in possession ripen into title by adverse possession

Holding

Yes - purchasers who took possession and remained in open occupation for over 12 years acquired title by adverse possession, proportionate to what each proved

Reasoning

The court held that even in uncontroverted/formal-proof proceedings the claimant must prove occupation for the limitation period. The 1st, 3rd, 5th and 6th Applicants proved purchases supported by agreements and long occupation exceeding 12 years; sub-division of the parent title did not interrupt time, so their titles by adverse possession were established over the specific acreages proved or admitted.

p. 5
02

Effect of change of ownership/subdivision on a running adverse possession claim

Holding

Subdivision of the parent parcel into new titles did not stop time running

Reasoning

Relying on the Catholic Diocese of Muranga authority cited in submissions, the court accepted that a claim for adverse possession runs with the land irrespective of change of ownership; the new titles issued upon subdivision of parcel 154 were ineffectual to interrupt the Applicants' accrued limitation periods.

p. 4
03

Burden of proof where the claim proceeds ex parte by formal proof

Holding

Applicants must still prove their case to the required standard; unproved portions of claims fail

Reasoning

Although the Respondents led no evidence and their claim was largely uncontroverted, the claimants still had to prove each purchase and period of occupation. Portions unsupported by evidence or unoccupied for the full 12 years were disallowed, showing the court scrutinised rather than automatically granted the pleaded claims.

p. 4

Legal principles established

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  • Even where a case proceeds by way of formal proof, the applicant is bound to prove their case to the required standard
  • Time for adverse possession continues to run notwithstanding a change of ownership or issuance of new titles to resultant parcels

Court orders

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  1. 1.Declaration that the 1st, 3rd, 5th and 6th Applicants have acquired 2.4, 1.1, 0.7 and 1 acres respectively in land comprised in L.R No. Moiben/Moiben Block 2 (Segero) 1472, 1473 and 1474 by adverse possession
  2. 2.The Respondents to execute transfer documents to facilitate registration in the Applicants' names in the portions specified and where they are occupying on the ground within 60 days
  3. 3.In default of execution by the Respondents, the Deputy Registrar of the court is empowered to execute the necessary documents on their behalf
  4. 4.The Respondents to pay the costs of the Originating Summons to the Applicants

Authorities

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Legislation

  • Limitation of Actions ActNot specified in judgment (adverse possession claim)

Cases cited (1)

  • Registered Trustee, Catholic Diocese of Muranga –Vs- Micere Njau & 3 others
    (2022) eKLR
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act and the Environment and Land Court Act, by Originating Summons for adverse possession

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, "Mosbey & 6 others v Busienei & 2 others (Enviromental and Land Originating Summons E019 of 2022) [2024] KEELC 6981 (KLR)", Case Analysis (2024). Originating Summons (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6981/eng@2024-10-24

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