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ELCDismissedOriginating Summons (undated, filed 2/2/2016), Kajiado Environment and Land Court· [2024] KEELC 7460 (KLR)

Salaash & another v Partoti & another (Environment & Land Case 79 of 2018) [2024] KEELC 7460 (KLR)

Environment and Land Court
12 November 2024
1,416 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kajiado dismissed two widows' adverse possession claim because they proved neither occupation nor the required 12 years against the current owner's title.

What this practically means

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Executive summary

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Two wives of the late Salaash Kaitui, the former registered owner of L.R. No. Kajiado/Kaputiei-North/629 (later subdivided into parcels 1952-1955), filed an amended originating summons claiming ownership of L.R. No. Kajiado/Kaputiei-North/1952 by adverse possession. They asserted lifelong occupation, a home, a church and family graves on the land, and denied knowledge of the sale, contending they were never summoned to the Land Control Board. The 1st defendant countered that he purchased the land at a sale by United Insurance Company (in statutory management), was registered on 10/2/2014, and that the plaintiffs' husband had sold the land in 1992 and had been restrained from trespass by an order in Kajiado PMCC 252/2015. At trial the 2nd plaintiff and the 1st defendant testified; only the plaintiffs filed submissions, which raised four issues including Land Control Board consent and overriding interest. The court held the consent issue could not be entertained, being unpled and raised for the first time in submissions. Occupation was not proved: no photographs of graves were on record, and any occupation would contravene the 2015 magistrates' court order, whose non-disclosure breached Order 4 rule 1(f) of the Civil Procedure Rules. Crucially, the 12-year period had not run against the 1st defendant, registered only on 10/2/2014, the suit having been filed on 27/5/2015. The overriding-interest claim also failed. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether absence of Land Control Board consent vitiated the transfers

Holding

Not available to the plaintiffs as it was never pleaded or raised at trial

Reasoning

The issue surfaced abruptly in written submissions without any plea or trial evidence. The court held it improper and unfair to introduce it at the tail end when the adverse party cannot respond, and noted the burden lay on the plaintiffs to plead and prove the absence of consent, which they failed to do. The suit was founded on continuous occupation, not on challenging the registration.

p. 3
02

Whether the plaintiffs are in occupation of the suit land

Holding

Not proved; any occupation would contravene an order of 11/6/2015 in Kajiado PMCC 252/2015

Reasoning

The claimed photographs of graves were not on record and, in any event, were not proved to depict the suit land. The 1st defendant produced an order in PMCC 252/2015 restraining the plaintiffs' husband from interfering with his use and occupation. The court also noted the plaintiffs breached Order 4 rule 1(f) of the Civil Procedure Rules by failing to disclose the previous suit.

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Whether 12 years of adverse possession had accrued

Holding

No; the suit was filed before expiry of 12 years from the 1st defendant's registration

Reasoning

The 1st defendant was registered on 10/2/2014 and the suit was filed on 27/5/2015, only one year and three months later. Adverse possession runs against the registered owner's title, so time could not have accrued against the 1st defendant for the requisite period, whatever the position regarding prior owners.

p. 3
04

Whether the plaintiffs hold an overriding interest under Section 30(g) Registered Land Act (Cap 300) and Section 28 Land Registration Act

Holding

No; occupation not proved and the plaintiffs' husband himself sold the land

Reasoning

The court found occupation unproved, so the question of overriding interest did not arise. Further, the chain of title showed the plaintiffs' husband sold to Stephen Ntii Ole Rotiken, who sold to United Insurance, which sold to the 1st defendant, and the plaintiffs proved no overriding interest arising from that history.

Legal principles established

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  • For a claim of adverse possession to succeed, the respondent must have been the registered owner of the suit land for a period of over 12 years, because adverse possession runs against the respondent's title
  • An issue not raised in the pleadings or at trial cannot be raised for the first time in written submissions, as the adverse party has no chance of responding
  • A party alleging absence of Land Control Board consent must plead and prove it

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.Costs of the suit awarded to the defendants
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over a claim for adverse possession of land (amended originating summons filed 2/2/2016)

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, "Salaash & another v Partoti & another (Environment & Land Case 79 of 2018) [2024] KEELC 7460 (KLR)", Case Analysis (2024). Originating Summons (undated, filed 2/2/2016), Kajiado Environment and Land Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7460/eng@2024-11-12

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