[2015] KEELC 403 (KLR)
The court found that the plaintiff had been in open, quiet, and continuous possession of the suit land, Kericho/Kapsuser/2156, since 1988 following an oral exchange with the defendant. The plaintiff's occupation was with the requisite intention to possess as owner, and he had compensated the defendant for the extra...
Source-derived case information.
- Citation
- [2015] KEELC 403 (KLR)
- Parties
- Plaintiff: Kimagut Arap Mogeso; Defendant: Simeon Kipkemoi Maru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 42 of 2008
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff. Declaration of title by adverse possession granted.
- Judges
- MA Silau
- Legal Topics
- Adverse Possession, Land Exchange, Title Registration, Quiet Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimagut Arap Mogeso
Plaintiff
Simeon Kipkemoi Maru
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff has acquired title to land parcel Kericho/Kapsuser/2156 by way of adverse possession.
- 2 Whether the plaintiff is entitled to have the title registered in his name in place of the defendant.
- 3 Whether the defendant should be compelled to execute transfer instruments for the suit land.
Ratio Decidendi
The court found that the plaintiff had been in open, quiet, and continuous possession of the suit land, Kericho/Kapsuser/2156, since 1988 following an oral exchange with the defendant. The plaintiff's occupation was with the requisite intention to possess as owner, and he had compensated the defendant for the extra acreage. The defendant's refusal to effect transfer did not negate the plaintiff's adverse possession, as the statutory period of 12 years had lapsed by the time the suit was filed in 2008. The court held that the plaintiff satisfied all legal requirements for adverse possession and was entitled to be declared the owner of the suit land, with the title to be registered in his...
Court Disposition
Judgment for the plaintiff. Declaration of title by adverse possession granted.
Orders
- The plaintiff is declared to have acquired title to land parcel Kericho/Kapsuser/2156 by way of adverse possession.
- The defendant shall execute all instruments necessary to transfer the said land to the plaintiff within 30 days of judgment.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KERICHO
CIVIL SUIT NO. 42 OF 2008
KIMAGUT ARAP MOGESO……………….PLAINTIFF
VERSUS
SIMEON KIPKEMOI MARU…….………..DEFENDANT
JUDGMENT
(Adverse possession; plaintiff having orally exchanged land with the defendant in the year 1988; no transfer effected; the plaintiff being in quiet occupation since then; suit for adverse possession filed in the year 2008 after 20 years of possession; whether plaintiff ought to be declared to have acquired title by way of adverse possession; judgment entered for the plaintiff)
This suit was commenced on 26th September 2008 by way of Originating Summons taken out pursuant to the provisions of the then Order XXXVI Rule 3D of the Civil Procedure Rules, equivalent to the current Order 37 in the Civil Procedure Rules of 2010. These provisions allow one to apply to court to be declared owner of certain land by way of adverse possession. This is precisely what the plaintiff wants in the Originating Summons herein. He wants a declaration that he has acquired title by way of adverse possession to the land parcel Kericho/Kapsuser/2156. He also wants the said title to be registered in his name in place of that of the defendant.
The defendant did not enter appearance to this suit and neither did he respond to the plaintiff's case. Directions were taken that the suit do proceed by way of viva voce evidence. At the hearing of the suit, the defendant did not show up despite being served with a hearing notice.
The plaintiff testified and called two witnesses. His case is that he owned a land parcel Kericho/Kapsuser/2226 which was adjacent to a land parcel Kericho/Kapsuser/2236 owned by the defendant. The defendant became interested in the plaintiff's land and he offered the land parcel Kericho/Kapsuser/2156 (the suit land) to the plaintiff in exchange for the land parcel Kericho/Kapsuser/2226. This they did orally in the year 1988 after which the plaintiff moved into the suit land and the defendant moved into the land parcel Kericho/Kapsuser/2226. The defendant even handed over the original title deed of the suit property to the plaintiff. In the year 2008, the plaintiff approached the defendant for a transfer of the land but the defendant refused and complained that they should revert back to their original positions since his land was bigger. This is despite the plaintiff having compensated the defendant with a sum of Kshs. 10,000/= in the year 1988 for the extra acreage.
The plaintiff's evidence was buttressed by two witnesses that he called. They affirmed the exchange and stated that the plaintiff took occupation of the suit land and licenced his son to be on the land. He has been in occupation since the year 1988 to date and has planted tea and developed structures.
The case of the plaintiff is premised upon the doctrine of adverse possession. For one to succeed in a case of this nature, he has to demonstrate open, quiet and continuous possession for a duration of at least 12 years. This is comprised in the latin phrase, nec vi, nec clam, nec precario. Such possession also needs to be accompanied by the necessary animus possidendi, or intention to acquire and keep the land as one's own.
I am satisfied from the evidence that the plaintiff and defendant had an oral agreement to exchange their parcels of land and that is how the plaintiff came to be in occupation of the suit property and has been in occupation since the year 1988. His occupation has been quiet, open and notorious. He has occupied the land with the necessary intention to acquire it as his own. To me , he has satisfied the criteria to be declared owner of the suit land by dint of the doctrine of adverse possession.
I therefore allow the plaintiff's case. I declare that the plaintiff has acquired title to the land parcel Kericho/Kapsuser/ 2156 by way of adverse possession. I further order the defendant to execute all instruments to transfer the said land to the plaintiff, and if he fails to do so within 30 days of this judgment, I direct the Deputy Registrar to proceed to do so.
This suit was instituted because the defendant refused to affirm their exchange of land. The defendant shall therefore bear the costs of this suit.
It is so ordered.
Dated, Signed and delivered on this 29th day of May 2015
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
PRESENT
Ms Chelangat holding brief for Mr. J.K. Kirui for Plaintiff
No appearance for Defendant
C/A; Emmanuel