Ol Jogi Limited v Al Nathir Investments Limited

of allotment dated 9/6/1997 from the Ministry of Lands together with the title to the suit property to the Plainti. 3. The Plainti claimed that it took possession of the suit property on 25/8/1997 upon payment of the purchase price and that it had been in continuous, open and uninterrupted possession of the suit property and continued to use it as an integral part of the Ol Jogi Wildlife Conservancy for rhinocerous and other endangered wildlife. It averred that for 26 years the Defendant had failed to execute the transfer documents in its favour and the attempts by the Plainti’s lawyers to have the Defendant sign the transfer had not been successful. Mr. Wildenstein deponed to the procedures and relevant payments that would be necessary before the land can be transferred to the Plainti and added that time for purposes of adverse possession started running on 25/8/1997 when the Plainti paid the purchase price and took actual possession of the suit property. 4. Wyclie Ihonga deponed in the adavit of service that he eected service of the Originating Summons upon the Defendant through Ochanda Onguru Advocates who were registered as the secretaries of the Defendant in June 2024. The same process server eected service on the Defendant through its postal address as well as the directors’ postal addresses in Wajir. 5. This matter was heard on 16/9/2024 when Alec Wildenstein gave evidence. He adopted his supporting adavit which he swore on 18/3/2024 and produced the annexures to the adavit in support of the Plainti’s claim including the letter dated 24/8/1997 together with copies of the title deed and letter of allotment dated 9/6/1997. 6. Mr. Wildenstein told the court that the Plainti took possession of the suit property in 1997 and had remained in possession to date. He elaborated that the suit land was in the middle of Ol Jogi Conservancy within Laikipia County and that it is a wildlife conservancy where rhinoceros’ conservation amongst other animals takes place. He referred the court to the copy of the title and explained that the land surrounding the suit property was owned by the Plainti and that the suit property could only be accessed through the adjoining land being L.R No. 10689 and 11950. 7. Upon conclusion of the hearing, the court directed the Plainti to le submissions. The Plainti led its submissions giving the background to the case. It cited several decisions from the Court of Appeal and the Environment and Land Court on the ingredients an applicant must prove to establish a claim of adverse possession under Sections 7, 13, 17 and 38 (1) of the Limitation of Actions Act. An applicant has to show that he had been in exclusive possession of the land openly and as of right without interruption for twelve years after dispossessing the owner. 8. The Plainti relied on Stephen Mwangi Gatunge v Edwin Onesmus Wanjau (Suing in her capacity as the administrator of the estates of Kimingi Wairera (Deceased) and of Mwangi Kimingi (Deceased) [2022] eKLR where the Court of Appeal stated that where a claiming party entered the land pursuant to a sale agreement, the statutory period would start running upon payment of the full purchase price. The Plainti submitted that it paid the full purchase price on 25/8/1997 and took possession of the suit property which it had had exclusive and interrupted possession of from that day. The Plainti cited several other decisions in support of its claim that it was entitled to adverse possession of the suit property. 9. The other issue which the Plainti took up was that it was immaterial to the claim for adverse possession whether the Defendant had been traced. Further, that the court had held that the provisions of the Land Control Act requiring one to obtain the consent of the Land Control Board did not apply to a claim to title by operation of law such as adverse possession. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13581/eng@2024-11-06 2

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10. The issue for consideration is whether the Plainti has established its claim of adverse possession to the suit property. The Plainti’s claim is that it purchased the suit property from the Defendant on 25/8/1997 and paid the purchase price to the Defendant who failed to execute the necessary documents to transfer the suit property to the Plainti. It was the Plainti’s evidence that it had been in actual and exclusive possession of the suit property since 1997 and that it was using the land as a conservancy for rhinoceros and other species of animals. The Defendant did not le any documents despite service being eected upon it. 11. The court is satised that the Plainti has proved its case on a balance of probabilities. The Plainti’s claim is allowed in the following terms: i. A declaration is issued that the Plainti has acquired title over L.R No. 11949 (Grant No. IR 80609) by adverse possession as against the Defendant. ii. The Defendant is to execute all the relevant documents necessary to transfer L.R No. 11949 (Grant No. IR 80609) to the Plainti’s name within 30 days of the date of this judgment failing which the Deputy Registrar of this court will execute the relevant documents to eect a transfer of the land to the Plainti. iii. The Land Registrar, Nanyuki is to register the Plainti as the proprietor of L.R No. 11949 (Grant No. IR 80609) in place of the Defendant. iv. The Plainti will bear its costs for the suit. DELIVERED VIRTUALLY AT NANYUKI THIS 6TH DAY OF NOVEMBER 2024. K. BOR JUDGE In the presence of: Mr. Samson Muchiri for the Plainti Court Assistant- Diana Kemboi No appearance for the Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13581/eng@2024-11-06 3

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