CONSOLIDATED WITH E015 OF 2023
FORMERLY ITEN ELCC CASE NO.007 OF 2022
JOSEPH TOROITICH KANGOGO (Suing as the administrator of the estate of Kangogo Arap Chepyegon (deceased)…………………………………………PLAINTIFF
VS.
HELLEN TALA KIPTOO (Sued as administrator of
the estate of JAPHET CHEPYEGON (Deceased)…………………………………..….1ST DEFENDANT
JEREMIAH YATICH……………….……..…2ND DEFENDANT
CHRISTOPHER KOSGEI……………………3RD DEFENDANT
AMOS KIPSUMBAI…………………..……….4TH DEFENDANT
MARIKO CHEPYEGON…..………………….5TH DEFENDANT
JIMMY KIPSUMBAI………………………….6TH DEFENDANT
KIPTUI KIPSUMBAI…………………………..7TH DEFENDANT
PHILIP YATICH……………………..…………8TH DEFENDANT
DENIS KOSGEI………………….……..……..9TH DEFENDANT
SOLOMON YATICH…………….……....….10TH DEFENDANT
JOSEPH KANGOGO……………...…...……11TH DEFENDANT
JAPHETH CHEPYEGON…………..…...…12TH DEFENDANT
WILLIAM CHEPYEGON………………...….13TH DEFENDANT
ENOCK CHEPYEGON………………………14TH DEFENDANT
WESLEY CHEPYEGON…………….…..….15TH DEFENDANT
MICHAEL YATICH……………………..… 16TH DEFENDANT
PATRICK KIPSUMBAI……………………..17TH DEFENDANT
Introduction
1. The suits herein are majorly in respect of the parcel of land known as Baringo/Sergonjun/240, hereinafter referred to as the suit property.
2. The suit property is registered in the name of Kangongo Arap Chepyegon (deceased). Registration of the suit property in the name of Kangogo Arap Chepyegon (deceased) was effected on 9th July, 1993.
3. Vide her plaint dated 9th June, 2021 and amended on 10th August 2021, filed in E014 of 2023, Hellen Tala Kiptoo, who is the administrator of the estate of Japheth Kiptoo Chebiegon (deceased), seeks judgment against Jeremiah Yatich and Joseph Toroitich Kangogo, who are administrators of the estate of Kangogo Arap Chepyegon comprised in the suit property for: -
a) A declaration that the actions of the defendants of evicting her without lawful order are illegal and unlawful;
b) An order of permanent injunction restraining the defendants from entering, demolishing structures, evicting her and/or in any other manner dealing with those parcels of land known as Baringo/Sergonjun/230 and Baringo/Sergonjun/240;
c) An order that the plaintiff has acquired an interest adverse to that parcel of land known as Baringo/Sergonjun/240 by adverse possession having occupied it for a period of over 12 years since 1962 and be issued with title deed;
d) Costs and interest.
4. As can be discerned from the averments contained in the plaint, the suit is premised on the grounds that the plaintiff with her husband, Japeth Kiptoo Chebiegon, deceased, had been living in the suit property since 1962; that the plaintiff’s deceased husband constructed a matrimonial home in land parcel number Baringo/Sergonjun/230 and business premises, sawmill, posho mill, rental houses, dairy shed and a store on Baringo/Sergonjun/240; that the defendants instituted suits in court to wit Eldoret ELC Case Nos. 288 of 2017 and 289 of 2017 in which they inter alia obtained orders for eviction of the defendants in those suits; that although the plaintiff was not a party to those suits, the defendants have without any colour of right or without any court order sanctioning the plaintiff’s eviction, threatened to use force and the local administration to evict the plaintiff from the suit properties.
5. Maintaining that she has been in occupation of land parcel Baringo/Sergonjun/240 for a long period of time and that her occupation has been open, peaceful, continuous, uninterrupted and exclusive since 1962, the plaintiff contends that she has become entitled to the parcel of land known as Baringo/Sergonjun/240 on account of having been in adverse possession in respect thereof.
6. The 2nd defendant, in the plaintiff’s suit (Joseph Toroitich Kangogo) filed a separate suit, ELCC NO. E015 of 2023 (Formerly Iten ELCC No. E007 of 2022) seeking judgment against the plaintiff and 16 other persons (defendants listed in that suit) for:-
i. An order that land parcel Baringo/Sergonjun/240 belongs to the estate of Kangogo arap Chepyegon (deceased);
ii. An order holding that the defendants further occupation of land parcel Baringo/Sergonjun/240 against his (plaintiff’s) consent is unlawful.
iii. An order compelling the defendants jointly and severally to render vacant possession of land parcel Baringo/Sergonjun/240;
iv. In default of (iii) above an order of eviction from land parcel Baringo/Sergonjun/240 do issue against the defendants;
v. An order of permanent injunction do issue restraining the defendants jointly and severally from interfering with his (the plaintiff’s) land parcel Baringo/ Sergonjun/ 240.
7. The suit by the 2nd defendant in E014 of 2023, is premised on the grounds that the parties to the suit, being family members, sometime in the year 2000 discussed and agreed to jointly establish and run a sawmill, a poshomill and shops for a business under the name Ego Sawmill (unregistered); that pursuant to that agreement, each member raised seed capital based on their individual ability; that the owner of Baringo/Sergonjun/240 agreed to host the business on Baringo/Sergonjun/240; that the business ran well for several years until 2017, when it stalled and that the estate of the deceased is no longer interested in hosting the business.
8. Explaining that the estate of the deceased has required the defendants to relocate the business to an alternative site which demand has not been heeded by the defendants, the plaintiff in E014 of 2023 instituted that suit seeking the reliefs listed herein above.
9. All the defendants, the plaintiff in E015 of 2023 included, filed their respective statements of defence.
10. On 20th March, 2023, the two suits were consolidated for purposes of hearing.
11. The case against the 5th, 11th and 12th defendants in E014 of 2023 was withdrawn on 3rd May, 2023 on the ground that those defendants passed on during the pendency of the suit.
12. On 18th July 2024, the 2nd,4th,6th,7th, 8th, 10th, 13th, 16th and 17th defendants in E015 of 2023 recorded a consent in the following terms:-
“By consent
1. The plaintiff’s claim against the 2nd, 4th, 6th, 7th, 8th, 10th, 13th, 16th and 17th defendants in KAB ELC E015 of 2023 be allowed as prayed with no order as to costs.
2. There be stay of execution of prayers (iii), (iv) and (v) pending final determination of the suit.”
13. The consent was adopted as an order of the court.
14. The 9th defendant in E015 of 2023 informed the court that he has no interest in the suit property (Baringo/Sergonjun/240); that his interest is only in the business operating thereat.
15. He admitted/acknowledged that owing to wrangles amongst the partners, the business is no longer operational.
16. The 9th defendant further informed the court that some partners had relocated the business and that some of the business assets are still on the suit parcel.
17. He informed the court that his objection to moving out of the suit property is because the business assets have not been shared out.
18. The case against the 14th defendant in E015 of 2023, was closed for none attendance of the 14th defendant to court to give evidence.
Analysis and determination
19. From the pleadings, evidence and submissions filed in these suits, it is common ground that the parcel of land known as Baringo/Sergonjun/240 is registered in the name of Kangongo Arap Chepyegon (deceased). It also common ground/or uncontroverted that the defendants in E015 of 2023, who include the plaintiff in E014 of 2023 entered the suit property with the permission of the owner to carry business therein. That fact was admitted by all the defendants in E015 of 2023, who testified. The plaintiff in E014 of 2023 also admitted/acknowledged that her husband’s entry into the suit property was with the permission of the owner of the suit property.
20. On account of the admission/acknowledgement by the plaintiff in E014 of 2023, that they entered into the suit property with the permission of the owner, I find her claim that she has become entitled to the suit property on account of having been in adverse possession thereof to be unmaintainable as a claim for adverse possession cannot accrue to a person whose possession of land is on account of permission or license given by the owner of the land. In that regard, see the case of case of Wilson Kazungu Katana & 101 others v. Salim Abdalla Bakshwein & another [2015] eKLR where the Court of Appeal stated/held: -
“From all these provisions, what amounts to adverse possession? First, the parcel of land must be registered in the name of a person other than the applicant, the applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner, lastly, he must have been in that occupation for a period in excess of twelve years having dispossessed the owner or there having been discontinuance of possession by the owner. This concept of adverse possession has been the subject of many discourses and decisions of this Court. Suffice to mention but two, Kasuve v Mwaani Investments Limited & 4 others [2004] 1KLR 184 and Wanje v saikwa (2) (supra). In the first decision, the court was emphatic that in order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of twelve years either after dispossessing the owner or by discontinuance of possession by the owner on his own volition. In the Wanje case, the Court went further and took the view that in order to acquire by statute of limitations a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it and that what constitutes dispossession of a proprietor are acts done which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use. Further, the court opined that a person who occupies another’s persons land with that person’s consent, cannot be said to be in adverse possession as in reality he has not dispossessed the owner of the land and the possession is not illegal.
What these authorities are emphasizing is that for one to stake a claim on a parcel of land on the basis of adverse possession, he must show that he entered the parcel of land more or less as a trespasser as opposed to by consent of the owner. In other words his entry must be adverse to the title of the owner of the land. It is also possible to enter the land with the consent of the owner, but if the owner at some point terminates the consent and the applicant does not leave but continues to occupy the land and the owner takes no steps to effectuate the termination of the consent for a period of twelve years after then, such applicant would be perfectly entitled to sue on account of adverse possession. Besides adversal entry into the land, the applicant must also demonstrate exclusive physical possession of the land and manifest unequivocally the intention to dispossess the owner. The occupation must be open, uninterrupted, adverse to the title of the owner, adequate, continuous and exclusive as already stated. The burden of proving all these is on the person asserting adverse possession. So that a claim of adverse possession would not succeed if the entry to the land was with the permission of the owner and remains that way throughout, or before the permission is terminated or if before the expiry of the period, the owner of the land takes steps to assert his title to the land. In the case of Samuel Miki Waweru v Jane Njeri Richu, Civil Appeal No. 122 of 2001, (UR), this court delivered the following dictum:
“…it is trite law that a claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner of, or in (accordance with) provisions of an agreement of sale or lease or otherwise. Further, as the High Court correctly held in Jandu v Kirpal [1975] EA 225 possession does not become adverse before the end of the period for which permission to occupy has been granted…”
21. Despite having acknowledged that their entry to the suit property was with permission of the owner, the plaintiff in E014 of 2015 claimed that they had entered into a lease agreement with the owner of plot No.240 which entitled them to continue living or carrying out business in the suit property. She was, however, unable to prove that there existed any lease between them and the owner detailing the timelines or any other conditions for their stay in the suit property.
22. In the absence of proof of existence of any lease agreement between the owner of plot No.240 with the defendants in E015 of 2023, the plaintiff in E014 of 2023 included, I find and hold that the entry of the defendants into the suit property was merely on the goodwill of the owner.
23. Under section 25 of the Land Registration Act 2012, the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in the Act and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-
(a) to the leases, charges and other encumbrances and to conditions and restrictions, if any, shown in the register; and
(b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless contrary is expressed in the register.
24. There being evidence that the license/permission given by the owner has since been withdrawn, I find and hold that continued use and occupation of the suit property by the defendants in E015 of 2023, the plaintiff in E014 of 2023 included, is inimical to the registered owner’s rights under Section 25 of the Land Registration Act.
25. The upshot of the foregoing is that the plaintiff in E014 of 2023 has not made up a case for being granted the orders sought. On the other hand, the plaintiff in E015 of 2024, has proved his case on a balance of probabilities. Consequently, save for the prayer for costs, I allow the case of the plaintiff in E015 of 2023 as prayed in the plaint dated 15th September, 2022.
26. This being a dispute between family members, parties shall bear their own costs of the suit.
27. To give parties time to make arrangements to relocate the businesses in the suit property, plot No. 240 to another site, I stay execution of this judgment and the decree that may issue pursuant thereto for sixty (60) days.
28. Orders accordingly.
Dated, signed and delivered this 24th day of March, 2025.
Judgment delivered Virtually in the presence of:
- Mr. Mua Wambua holding brief for Mr. Mathai for Plaintiff (No. 14 of 2023)and 1st Defendant (No. 15 of 2024).
- Mr. Kipnyekwei for Plaintiff in No. 15 of 2023 and 2nd Defendant in No. 14 of 2023.
- Ian – Court Assistant.