[2019] KEELC 4458 (KLR)
The court found that, based on the extracts of title, the suit properties were registered in the name of the Government of Kenya as of 29 March 2000, and the period during which the Government held title cannot be counted for purposes of adverse possession. The applicant had not demonstrated, through cogent...
Source-derived case information.
- Citation
- [2019] KEELC 4458 (KLR)
- Parties
- Applicant: Mathew Chebon Cherogony; Respondent: Kipkurui Arap Rono; Respondent: Julius C. Bowen; Respondent: David Kandagor; Respondent: Elijah Komen Katya; Respondent: Joseph Birir; Respondent: John Ndungu; Respondent: Mathey Kibyegon; Respondent: Kiplangat Chumo; Respondent: David Mbugua; Respondent: 8th respondent; Respondent: 10th respondent; Respondent: 11th respondent
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 212 of 2013
- Procedural Posture
- Originating Summons / Ruling on Preliminary Compliance and Summary Dismissal Application
- Outcome
- Application for summary dismissal declined; suit to proceed to full hearing.
- Legal Topics
- Adverse Possession, Limitation of Actions, Title Registration, Government Land, Summary Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathew Chebon Cherogony
Applicant
Kipkurui Arap Rono
Respondent
Julius C. Bowen
Respondent
David Kandagor
Respondent
Elijah Komen Katya
Respondent
Joseph Birir
Respondent
John Ndungu
Respondent
Mathey Kibyegon
Respondent
Kiplangat Chumo
Respondent
David Mbugua
Respondent
8th respondent
Respondent
10th respondent
Respondent
11th respondent
Respondent
Procedural Posture
Originating Summons / Ruling on Preliminary Compliance and Summary Dismissal Application
Legal Issues
- 1 Whether the applicant has satisfied the statutory period of 12 years for adverse possession against the respondents.
- 2 Whether time for adverse possession can run while the land is registered in the name of the Government of Kenya.
- 3 Whether the applicant has provided sufficient evidence to show the suit properties were not government land.
Ratio Decidendi
The court found that, based on the extracts of title, the suit properties were registered in the name of the Government of Kenya as of 29 March 2000, and the period during which the Government held title cannot be counted for purposes of adverse possession. The applicant had not demonstrated, through cogent documentation, that the properties were not government land or that the period of private ownership was sufficient to meet the 12-year statutory requirement. However, since the applicant provided an explanation and supporting affidavit suggesting the land was originally owned by Kalenjin Enterprises, the court exercised discretion to allow the applicant a full hearing rather than...
Court Disposition
Application for summary dismissal declined; suit to proceed to full hearing.
Orders
- The suit is not summarily dismissed and will proceed to full hearing.
- Directions on hearing to be given on the date of this ruling.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONEMNT AND LAND COURT O KENYA
AT NAKURU
ELC NO.212 OF 2013
MATHEW CHEBON CHEROGONY............................APPLICANT
VERSUS
KIPKURUI ARAP RONO &10 OTHERS.............RESPONDENTS
RULING
1. This suit was commenced by way of an Originating Summons filed on 22 February 2013, and taken out pursuant to the provisions of Sections 17, 18, 37 and 38 of the Limitation of Actions Act, Cap 22, Laws of Kenya, and Order 37 Rule 3D of the Civil Procedure Rules. The applicant seeks orders that he be declared owner, through adverse possession, of the land parcels Nakuru Municipality Block 29/1449, 1448, 1447, 1446, 1445, 1078, 1130, and 1078 respectively registered in the name of the respondents.
2. The motion was accompanied by the supporting affidavit of the applicant but no certified extract of the title was annexed despite the provisions of Order 37 Rule 7 (2) which provide as follows :-
(2) The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.
3. On 29 April 2015, I directed the applicant to comply with the above provision of the law and gave him 14 days to annex the extracts of title. The affidavit was not filed within 14 days but on 5 October 2015, and the applicant did annex the extracts of title to the land parcels claimed. I have observed from the same that entry No. 1 in all the titles reveal that the land was under the proprietorship of the Government of Kenya, the Government being registered as proprietor on 29 March 2000. The next proprietors after the Government of Kenya were as follows ;
No. 1445, Julius C. Bowen proprietor on 28 June 2004;
No. 1446, David Kandagor, proprietor on 28 June 2004;
No. 1448, Elijah Komen Katya, proprietor on 31 August 2004;
No. 1447, Joseph Birir, proprietor on 28 June 2004;
No. 1449, Kipkurui arap Rono, proprietor on 11 October 2010;
No. 1048, John Ndungu, proprietor on 28 June 2004;
No. 1078, Mathey Kibyegon, proprietor on 8 October 2012;
No. 1087, Kiplangat Chumo, proprietor on 28 June 2004;
No. 1130, David Mbugua, proprietor from 9 July 2002;
4. In all these, it would seem that the applicant has not attained the required 12 years to sustain a claim for adverse possession, since, the position of the law is that the period while title is with Government cannot be taken into account. This was affirmed by the Court of Appeal in the case of Gitu v Ndungu. That is the reason that I asked the applicant to show cause why the suit should not be dismissed. Indeed it would be a waste of judicial time to proceed to hear a matter where it is apparent on the face of it, that the period required to sustain a case of adverse possession has not been attained.
5. The applicant filed an affidavit sworn by one David Maina Kirungui, who averred inter alia that the suit properties were carved out of the land parcel LR No. 6273, which was owned by Kalenjin Enterprises and not the Government of Kenya. He has stated that the entry in favour of the Government of Kenya is therefore erroneous.
6. In as much as the applicant has not shown me any nexus through cogent documentation that the suit properties emanate from LR No. 6273 and that this land was owned by Kalenjin Enterprises, I am prepared to give him the benefit of doubt. Since he has tabled some sort of explanation, it is only fair that he be given a full hearing so that he can have an opportunity to fully present his case.
7. I will therefore not proceed to summarily dismiss the case but will give directions on its hearing on the day that this ruling is being delivered.
8. The costs of the arguments that have ensued herein will be costs in the cause.
9. Orders accordingly.
Dated, signed and delivered in open court at Nakuru this 13th day of February 2019.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of :-
Mr. Waiganjo present for the plaintiff.
Ms. Nancy Njoroge holding brief for Mr. Oumo for the 8th & 11th respondents.
10th respondent present in person.
No appearance for the other respondents.
Court Assistant :Nelima Jenipher.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU