David Kimalel Birir v Sammy Kiprotich Tangus & another [2020] eKLR Case Summary

Court
Environment and Land Court at Eldoret
Category
Civil
Judge(s)
S. M. Kibunja
Judgment Date
October 07, 2020
Country
Kenya
Document Type
PDF
Number of Pages
2
Explore the case summary of David Kimalel Birir v Sammy Kiprotich Tangus & another [2020] eKLR, highlighting key legal issues and judgments delivered in this significant ruling.

Case Brief: David Kimalel Birir v Sammy Kiprotich Tangus & another [2020] eKLR

1. Case Information:
- Name of the Case: David Kimalel Birir v. Sammy Kiprotich Tangus & Peter Macharia Njeru
- Case Number: E & L CASE NO. 151 OF 2017
- Court: Environment and Land Court of Kenya at Eldoret
- Date Delivered: October 7, 2020
- Category of Law: Civil
- Judge(s): S. M. Kibunja
- Country: Kenya

2. Questions Presented:
The court was tasked with resolving several legal issues:
(a) Whether the suit is defective.
(b) Whether the Plaintiff’s possession of the suit land was with permission or was adverse to the title of the registered proprietor.
(c) Whether the Plaintiff has established his claim for adverse possession over the suit land.
(d) Who should bear the costs of the suit?

3. Facts of the Case:
The Plaintiff, David Kimalel Birir, initiated proceedings against the Defendants, Sammy Kiprotich Tangus and Peter Macharia Njeru, claiming ownership of land (Karuna/Sosiani Block 2 (Progressive)/332) through adverse possession. He asserted uninterrupted possession since 1983, arguing that the title of the second Defendant was extinguished by adverse possession prior to its transfer to the first Defendant. The Defendants countered that the land was registered to the second Defendant in 2004 and later transferred to the first Defendant in 2016, claiming the Plaintiff’s assertion of possession was false and based on permission.

4. Procedural History:
The Plaintiff filed an originating summons on April 4, 2017, later amended on June 19, 2018, seeking various orders related to the land. The first Defendant filed a replying affidavit on May 27, 2017, disputing the Plaintiff's claims. The case proceeded to trial, with testimonies from multiple witnesses, including the Plaintiff and the Defendants, and culminated in written submissions from both parties.

5. Analysis:
- Rules: The court considered the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, particularly the requirement for an affidavit to be supported by a certified extract of the title to the land in question.

- Case Law: The court referenced several precedents, notably Wilson Kazungu Katana & 101 Others v. Salim Abdalla Bakshwein & Another [2015] eKLR, which emphasized the necessity of annexing a title extract to the originating summons. Other cases, such as Mbira v. Gachuhi [2002] and Samuel Miki Waweru v. Jane Njeri Richu, were cited to illustrate the principles surrounding adverse possession.

- Application: The court found that the Plaintiff's failure to annex a certified title extract rendered the suit incompetent. Additionally, it was established that the Plaintiff's occupation of the land was based on permission from the second Defendant, as the land was initially utilized by the Plaintiff’s mother, which negated any claim of adverse possession. The court also noted that the period of possession did not meet the required twelve years for adverse possession.

6. Conclusion:
The court ruled against the Plaintiff, finding that he did not establish a claim for adverse possession and that his occupation was not adverse to the title of the registered proprietor. The court dismissed the Plaintiff's case with costs awarded to the Defendants.

7. Dissent:
There were no dissenting opinions noted in the judgment.

8. Summary:
The case of David Kimalel Birir v. Sammy Kiprotich Tangus & Peter Macharia Njeru highlights the complexities surrounding claims of adverse possession in Kenya. The court's decision emphasized the importance of procedural compliance in civil claims, particularly the necessity of supporting documents. The ruling reinforces the principle that possession based on permission does not constitute adverse possession, thereby setting a precedent for future similar cases. The Plaintiff's case was dismissed, and costs were awarded to the Defendants.ss

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