Chepkener v Chepkurui & another (Environment & Land Case 52 of 2018) [2022] KEELC 3552 (KLR)
The bottom line
#The Environment and Land Court in Eldoret declared that 21 years of open occupation gave a buyer ownership of 3.23 hectares of land, despite the owner's later registration.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff has established having been in adverse occupation of the suit land, and if so from when.
- 2.Whether the plaintiff's occupation of the suit property was open, notorious and without permission of the owner.
- 3.Whether the plaintiff's occupation of the suit land has been for a continuous and uninterrupted period of over 12 years.
- 4.Whether the 1st defendant has made a case for the eviction of the plaintiff from the suit land.
- 5.Who pays the costs in the suit and counter claim.
Key legal issues
#Whether adverse possession can be analysed where first registration of the land occurred only in 2010
Yes - where the true owner is known, the claim has been asserted against him, and the parcel's dimensions are known, the claim may be analysed regardless of first registration date.
The 1st defendant argued the 12-year period could only run from 2010 registration, relying on Mtana Lewa and Kasuve. The court distinguished those cases: they failed because the true owners were not before the court or the property was un-demarcated. Here the true owner was known and sued, and the land was surveyed, so the claim could proceed.
Whether the plaintiff was in open, continuous and uninterrupted adverse possession for over 12 years
Yes - possession from 1997 (after the purchaser's licence lapsed) was open, notorious and uninterrupted until the 2018 protest, exceeding 12 years.
The court found on a balance of probabilities that the plaintiff purchased the land from Pius Birir in 1995/96, corroborated by receipts and witnesses, and occupied openly. The 1st defendant never protested or sought eviction until 2018, by which time over 12 years of adverse possession had accrued, extinguishing his interest.
Whether the 1st defendant's counterclaim for eviction should succeed
No - the counterclaim fails because the 1st defendant's interest was extinguished by adverse possession.
Having found the plaintiff's adverse possession for over twelve years extinguished the 1st defendant's interest, the court held the 1st defendant was precluded from claiming ownership or vacant possession, and the counterclaim had no merit.
Legal principles established
#- A claimant seeking title by adverse possession must prove exclusive, open possession as of right, without interruption, for 12 years, either by dispossessing the owner or upon the owner discontinuing possession.
- Where a purchaser enters with permission and no Land Control Board consent or transfer is effected within six months, the licence lapses and possession becomes adverse after six months.
Court orders
#- 1.Declaration that the interests of the 1st defendant and Pius Ruto Birir (estate represented by the 2nd defendant) in 3.23 hectares of Elgeyo/Marakwet/Lower Kabito/19x have been extinguished by the plaintiff's adverse possession from 1997
- 2.Declaration that the plaintiff has acquired title by adverse possession to the 3.23 hectares
- 3.1st defendant to transfer the land to the plaintiff within 90 days; in default, the Land Registrar, Elgeyo Marakwet to rectify the register, cancel the 1st defendant's title deed and register the plaintiff as proprietor
- 4.Permanent injunction restraining the defendants from interfering with the plaintiff's use, possession and occupation of the land
- 5.Dismissal of the 1st defendant's counterclaim
- 6.Each party to bear his own costs in both the main suit and counterclaim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya, and Order 37 Rule 7 of the Civil Procedure Rules
Relief refused
#Costs of the suit against the defendants
Court considered justice better served with each party bearing own costs
Costs
Each party to bear his own costs in both the main suit and counterclaim
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That a permanent injunction is hereby issued restraining the defendants from interfering with the plaintiff's use, possession and occupation of Elgeyo/Marakwet/Lower Kabito/19x, measuring 3.23 hectares.
That Nathaniel Kibet Chepkener, the plaintiff, has acquired title by adverse possession to the 3.23 hectares of Elgeyo/Marakwet/Lower Kabito/19x.
That each party to bear his own costs in both the main suit and counterclaim.
A claimant has to prove that he has been in exclusive possession of the land, openly and as of right and without interruption for 12 years, either after dispossessing the owner or by discontinuation of possession by the owner of his own volition.
Issues in the judgment
#The judgment states the 1st defendant obtained a title deed in 2017 but elsewhere says his registration occurred on 7th July 2010 with issuance of the title deed on 6th October 2017; also states 'The suit property was first registered in 2010' while adjudication records indicate first registration in 1985 with Pius Ruto Birir.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepkener v Chepkurui & another (Environment & Land Case 52 of 2018) [2022] KEELC 3552 (KLR)", Case Analysis (2022). Originating Summons dated 8th March 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3552/eng@2022-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.