[2024] KEELC 5880 (KLR)

[2024] KEELC 5880 (KLR)

The court found that the appellant and his family had been in occupation and use of the suit property for more than twelve years prior to the filing of the respondent's suit for recovery of land. The evidence, including burial permits, photographs, and admissions by the respondent regarding the appellant's use of portions of the land, established on a balance of probabilities that the appellant's occupation predated the respondent's registration as proprietor. The applicable limitation period for recovery of land is twelve years under Section 7 of the Limitation of Actions Act, not three years for trespass. The respondent's suit, filed in 2015, was therefore statute-barred, as the right...

Citation
[2024] KEELC 5880 (KLR)
Parties
Appellant: Samson Lopagaye Longu; Respondent: Eunice RW Gitahi
Court
Environment and Land Court
Court Station
Environment and Land Court at Nyahururu
Jurisdiction
Kenya
Judgment Date
20 August 2024
Case Number
Environment and Land Appeal E001 of 2021
Procedural Posture
Environment and Land Appeal / Judgment
Outcome
appeal allowed; respondent's suit dismissed with costs to appellant
Judges
AK Bor
Legal Topics
Adverse Possession, Overriding Interests, Limitation of Actions, Recovery of Land
Source Language
English
Land and Property Civil Procedure Adverse Possession Overriding Interests Limitation of Actions Recovery of Land

Case Brief

Summary, issues, holding and outcome

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Parties

Samson Lopagaye Longu

Appellant

Eunice RW Gitahi

Respondent

Procedural Posture

Environment and Land Appeal / Judgment

Legal Issues

  1. 1 Whether the appellant had acquired overriding interests or rights by adverse possession over the suit property prior to the respondent's registration as proprietor.
  2. 2 Whether the respondent's suit for recovery of land was statute-barred under Section 7 of the Limitation of Actions Act.
  3. 3 Whether the trial court erred in granting an injunction and ordering the appellant's eviction from the suit property.

Ratio Decidendi

The court found that the appellant and his family had been in occupation and use of the suit property for more than twelve years prior to the filing of the respondent's suit for recovery of land. The evidence, including burial permits, photographs, and admissions by the respondent regarding the appellant's use of portions of the land, established on a balance of probabilities that the appellant's occupation predated the respondent's registration as proprietor. The applicable limitation period for recovery of land is twelve years under Section 7 of the Limitation of Actions Act, not three years for trespass. The respondent's suit, filed in 2015, was therefore statute-barred, as the right...

Court Disposition

appeal allowed; respondent's suit dismissed with costs to appellant

Orders

  • The appeal is allowed.
  • The judgment of the Chief Magistrate in Nyahururu CM ELC Case No. 141 of 2018 is set aside.