[2018] KEELC 2794 (KLR)
The court found that the plaintiff, as administrator of the estate of Bushasha Lucheri, had proved on a balance of probabilities that the deceased acquired 2 acres of land known as Cherangany/Kapcherop/1700 by adverse possession. The evidence showed that the deceased entered into possession in 1983 following a...
Source-derived case information.
- Citation
- [2018] KEELC 2794 (KLR)
- Parties
- Plaintiff: Abraham Lucheli Luvonga (suing as the administrator of the estate of Bushasha Lucheri, deceased); Defendant: Fred Okea, alias Fred Okeya; Defendant: Kipkorir Rotich Cheboi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 180 of 2017
- Procedural Posture
- Land Case / Judgment
- Outcome
- judgment_for_plaintiff
- Judges
- FM Njoroge
- Legal Topics
- Adverse Possession, Land Registration, Title Transfer, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abraham Lucheli Luvonga (suing as the administrator of the estate of Bushasha Lucheri, deceased)
Plaintiff
Fred Okea, alias Fred Okeya
Defendant
Kipkorir Rotich Cheboi
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the estate of Bushasha Lucheri acquired 2 acres of land known as Cherangany/Kapcherop/1700 by way of adverse possession.
- 2 Whether the register should be amended to reflect the late Bushasha Lucheri as the owner of the suit land.
Ratio Decidendi
The court found that the plaintiff, as administrator of the estate of Bushasha Lucheri, had proved on a balance of probabilities that the deceased acquired 2 acres of land known as Cherangany/Kapcherop/1700 by adverse possession. The evidence showed that the deceased entered into possession in 1983 following a purchase, occupied the land openly and continuously without interruption for over 12 years, and that the plaintiff continued such occupation after the deceased's death. The defendants did not contest the claim or present any evidence to the contrary. The court held that the requirements for adverse possession under Kenyan law were satisfied and that the register should be amended to...
Court Disposition
judgment_for_plaintiff
Orders
- A declaration is hereby issued that the late Bushasha Lucheri has acquired 2 acres of land known as Cherangany/Kapcherop/1700 by way of adverse possession.
- The County Land Registrar, Elgeiyo Marakwet County, is directed to amend the register of parcels to have title deed no. Cherangany/Kapcherop/1700 registered in the name of the late Bushasha Lucheri after cancelling the name of the 2nd defendant as the registered owner.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 180 OF 2017 (O.S.)
ABRAHAM LUCHELI LUVONGA(SUING AS
THE ADMINISTRATOR OF THE ESTATE OF
BUSHASHA LUCHERI(DECEASED)........................................PLAINTIFF
VERSUS
FRED OKEA, ALIAS FRED OKEYA................................1ST DEFENDANT
KIPKORIR ROTICH CHEBOI ........................................2ND DEFENDANT
JUDGMENT
1. The plaintiff filed the Originating Summons herein on the 15th November 2017. He seeks the following orders:
(a) A declaration that the late Bushasha Lucheri has acquired 2 acres /Kapcherop/1700 by way of adverse possession;
(b) An order directing the County Land Registrar Elgeiyo Marakwet County to amend the register of parcels to have title deed no Cherangany /Kapcherop/1700 registered in the name of the late Bushasha Lucheri after cancelling the name of the 2nd respondent herein as the registered owner.
(c) Costs of the suit.
(d) Any other relief.
THE PLEADINGS
The plaintiff’s case
2. The plaintiff’s case is contained in the supporting affidavit and the oral evidence that he gave at the formal proof hearing of this suit on 28/5/2018.
3. In the supporting affidavit he avers that that he is the biological son and also the administrator of the estate of the deceased Bushasha Lucheri who died on 5/11/2009 and exhibits a copy of the Limited Grant to that effect. He further avers that in 1983 the deceased had purchased 2 acres of land from the 1st respondent who had bought the same from the 2nd respondent and that the deceased and his family took vacant possession of the suit land in the same year. He states that they stayed thereon uninterruptedly, openly and without interference from anybody till Bushasha Lucheri died in the year 2009 while still living on the suit land. After the demise of Bushasha Lucheri the plaintiff continued living on the suit land, and has been living on that land for 36 years now. The land is now registered in the name of the 2nd respondent, and records show he was so registered in 1994. It is the averment of the plaintiff that efforts by the deceased to have the land transferred to him were in vain and he died before the transfer was effected.
4. The defendants did not file any reply to the Originating Summons.
5. The plaintiff alone testified on the 28th May 2018. He reiterated much of what is in the Originating Summons and the supporting affidavit. He produced documents including a grant of letters of administration, a copy of the sale agreement dated 4/9/1983, Certificate Of Official Search in respect of the suit land, the chief’s letter dated 26/7/16, and the Assistant County Commissioner’s Letters dated 18/8/2016 and 7/9/16. The latter three documents evince the attempts to resolve the issue by the local administration. A demand letter from Kaosa & Co advocates was also produced in evidence. The defendants are said to have defied these attempts, hence this suit.
DETERMINATION
6. I have considered the Originating Summons and the evidence given in this case. The Originating Summons is not opposed. I have examined the documentary evidence given by the plaintiff. It supports his claim. I find that the plaintiff had proved his claim on a balance of probabilities against both defendants and I hereby grant judgment in terms of prayers A, B and C of the Originating Summons dated 15th November 2017.
Dated, signed and delivered at Kitale on this 12th day of June 2018.
MWANGI NJOROGE
JUDGE
12/6/2018
Coram: Before Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Gacathi holding brief for Mr. Khaosa for the plaintiff
N/A for the defendant
COURT
Judgment read in open court.
MWANGI NJOROGE
JUDGE
12/6/2018