[2011] KEHC 3407 (KLR)
The court found that the Plaintiffs had proved adverse possession of 1.6 acres of the Defendant's land comprised in title No. Kericho/Ainamoi/699, and that the Defendant's title to that portion had been extinguished. The judgment and decree as originally drawn were vague and incapable of implementation because they...
Source-derived case information.
- Citation
- [2011] KEHC 3407 (KLR)
- Parties
- Plaintiff: Lelei A. Tuei alias Joseph Lelei Kemei; Plaintiff: Tirop A. Kemei; Defendant: Kipsuge A. Lelei alias Suk A. Lile
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 48 of 2004
- Procedural Posture
- Originating Summons / Ruling on Application for Review of Judgment and Decree
- Outcome
- application for review allowed; judgment and decree reviewed and clarified; no order as to costs
- Legal Topics
- Adverse Possession, Limitation of Actions, Land Subdivision, Decree Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lelei A. Tuei alias Joseph Lelei Kemei
Plaintiff
Tirop A. Kemei
Plaintiff
Kipsuge A. Lelei alias Suk A. Lile
Defendant
Procedural Posture
Originating Summons / Ruling on Application for Review of Judgment and Decree
Legal Issues
- 1 Whether the decree as drawn was capable of implementation in light of the judgment.
- 2 Whether the Plaintiffs were entitled to review of the judgment and decree to specify the exact acreage acquired by adverse possession.
- 3 Whether the Plaintiffs had proved adverse possession to the extent of 1.6 acres under Section 38 of the Limitation of Actions Act.
Ratio Decidendi
The court found that the Plaintiffs had proved adverse possession of 1.6 acres of the Defendant's land comprised in title No. Kericho/Ainamoi/699, and that the Defendant's title to that portion had been extinguished. The judgment and decree as originally drawn were vague and incapable of implementation because they did not specify the precise acreage to be transferred to the Plaintiffs. The Plaintiffs had sufficient reason to seek review under Order 45 Rule 1(1) of the Civil Procedure Rules. The court therefore reviewed the judgment to clarify that the Plaintiffs were entitled to 1.6 acres, to be excised from the suit land and transferred to them as joint proprietors, and that the...
Court Disposition
application for review allowed; judgment and decree reviewed and clarified; no order as to costs
Orders
- The judgment is reviewed to specify that the Plaintiffs have proved adverse possession to the extent of 1.6 acres of land known as No. Kericho/Ainamoi/699.
- The Defendant's title to 1.6 acres is extinguished and the Plaintiffs are entitled to be registered as joint proprietors of that portion under Section 38 of the Limitation of Actions Act.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CIVIL SUIT NO. 48 OF 2004(O.S)
LELEI A. TUEI aliasJOSEPH LELEI KEMEI……….1ST PLAINTIFF
TIROP A. KEMEI ……………………..……………….2ND PLAINTIFF
VERSUS
KIPSUGE A. LELEIalias SUK A. LILE …………….. DEFENDNAT
RULING
In their Notice of Motion dated 28th May, 2010, the Plaintiffs’ seek review of the judgment dated 25th March, 2009 and the decree on the ground that the decree is not capable of being implemented. The judgment of the court (by the Hon. Lady Justice Mary Ang’awa) ordered as follows:
“that the land be accordingly subdivided. I award the costs of thisapplication to the Applicant”.
The decree that ensued was to the effect
“that the Respondent holds the land in trust on behalf of the Plaintiffs” and that the land be accordingly subdivided…”
The suit had been commenced by way of Originating Summons and the Plaintiffs’ claim was that they had acquired 1. 6 acres of the land comprised in the title No. Kericho/Ainamoi/699by way of adverse possession of more than twelve(12) years and that they were entitled to be registered pursuant to Section 38of the Limitation of Actions Act, Cap 22 of the Laws of Kenya in respect of 1. 6 acres comprised in the said title.
It is discernible from the judgment that the court made a finding that the Plaintiffs’ were in adverse possession to title of the Defendant to the extent of 1. 6 acres only. The evidence adduced showed that the entire land comprised in the title number Kericho/Ainamoi/699 measures 1. 9 hectares (i.e. 4. 713 acres or thereabouts). As the Defendant’s land whose title had been extinguished by the Plaintiffs’ adverse possession was 1. 6 acres, it was necessary for this fact to be specified both in the judgment and in the decree. As it sits, the decree is not capable of implementation not least because it is not only vague but does not state how much land the Plaintiffs’ are entitled to and in respect of which they can compel the Defendant to transfer to them.
The Defendant opposed the application by filing grounds of opposition in which incompetence of the application was alleged. Justice needs to be done and the Defendant cannot be allowed to use technicalities to defeat the relief given by the court to the Plaintiffs.
Under Rule 1 (1) of Order 45 of the Civil Procedure Rules 2010 the Plaintiffs were entitled to seek as they have done the review of the judgment and decree if they were aggrieved by the decree providing that they could show, inter alia, that there was some mistake or error apparent on the face of the record, or that there was sufficient reason for doing so. In the circumstances of this case, it is patently clear that the Plaintiffs have sufficient reason to come to court to seek review as they have done. I so find.
Mr. D. O. Akinyi, learned Counsel for the Plaintiffs, urged the Court to allow the application and to review the judgment and the decree.
In the light of what I have stated above, I find merit in the application and I allow it.
The judgment of the Hon. Lady Justice Mary Ang’awa is hereby reviewed as follows: In paragraph 9 of the judgment, the following shall be added:
“The Plaintiffs have proved that they were in adverse possession to the title of the Defendant relating to the land known as No. Kericho/Ainamoi/699 to the extent of 1. 6acres. The Defendant’s title to the said land to the extent of 1. 6 acres that is occupied by and is in possession of the Plaintiffs has been extinguished by the Plaintiffs’ adverse possession and the Plaintiffs are entitled under Section 38 of the Limitation of Actions Act Cap 22, to be registered as the joint proprietors of the said 1. 6 acres”.
In paragraph 11 of the judgment after the word “subdivided” will be inserted the following:
“The suit land No.Kericho/Ainamoi/699 shall be subdivided into two portions of 1. 6 acres and 3. 1 acres and the portion of 1. 6 acres shall be excised and transferred to the Plaintiffs as joint proprietors while the portion measuring 3. 1 acres or thereabouts shall be retained by the Defendant. A decree shall issue in these terms”.
I make no order as to costs.
DATED at KERICHO this 7th day of March, 2011
G.B.M. KARIUKI, SC
RESIDENT JUDGE
COUNSEL APPEARING
Mr. D.O. Akinyi Advocate for the Plaintiff/Applicant
N/A by Mr. E.M. Orina Advocate for the Respondent
Court Clerk – Mr. Koech