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Court of AppealPartially AllowedCivil Appeal No. 231 of 1999

Njuguna Ndatho v Masai Itumo, Mateo & Nguli Kyalo (Civil Appeal 231 of 1999) [2002] KECA 161 (KLR)

Court of Appeal of Kenya
18 October 2002
RKR.O. KwachPhilip Kiptoo TunoiP.K. TunoiASA.B. Shah
2,453 words in judgment
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The bottom line

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A landowner lost his title to long-term occupants because warning letters don't stop the twelve-year legal clock — only filing a court case does.

What this practically means

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Executive summary

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The appellant, registered proprietor of two Subukia parcels totalling 556 acres, sued in the High Court for eviction of the three respondents, who had occupied about 20 acres since 1973. Rimita J dismissed the claim, holding that the respondents' possession was adverse and uninterrupted, but allowed the respondents to obtain title by adverse possession through a counter-claim. On appeal, the Court of Appeal (Kwach, Tunoi and Shah, JJ.A) lamented counsel's failure to cite authorities and undertook its own review of when time stops running against an adverse possessor. It endorsed the position in Kiritu v Kabura, followed in Murathe v Gathimbi, that the filing of a suit for recovery of land stops time under section 38 of the Limitation of Actions Act, and that a mere formal entry no longer suffices. The appellant's letters, the post-expiry criminal trespass charge and the ex parte District Officer proceedings - a forum without jurisdiction - did not interrupt the respondents' open, continuous and exclusive possession. The twelve-year period having run, the appellant's title to the suit land stood extinguished and the defence of limitation succeeded. However, the Court held that title by adverse possession must be sought by originating summons under Order XXXVI rule 3D of the Civil Procedure Rules, not by counter-claim; the cross-claim was misconceived. The appeal was allowed only to the extent that the orders on the counter-claim were set aside, the appellant's suit was dismissed with costs, no order was made on the costs of the appeal, and the superior court's costs order in favour of the respondents on the counter-claim was set aside, the respondents being left to pursue title as advised.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents' occupation of the suit land was adverse possession sufficient to extinguish the appellant's title under the Limitation of Actions Act
  2. 2.Whether the steps taken by the appellant (letters, criminal trespass charge, proceedings before the District Officer) interrupted or stopped time from running against the adverse possessor
  3. 3.Whether the respondents were entitled to invoke adverse possession by way of a counter-claim in the suit rather than by originating summons under Order XXXVI rule 3D of the Civil Procedure Rules

Key legal issues

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01

Whether the respondents' occupation constituted adverse possession extinguishing the appellant's title

Holding

The respondents' occupation since 1973 was open, uninterrupted and adverse; the twelve-year period ran out and the appellant's title to the suit land was extinguished.

Reasoning

The respondents entered the land in 1973 and occupied about 20 of 556 acres openly and continuously. The appellant took no lawful active step to evict them: he wrote letters, which do not interrupt possession, brought a criminal trespass charge after the twelve years had expired, and went to the District Officer, a forum without jurisdiction. None of these steps stopped time from running, so limitation extinguished his title.

p. 3
02

When time stops running against an adverse possessor

Holding

Time is stopped either when the owner asserts his right by taking legal proceedings or making an effective entry, or when his right is admitted by the adverse possessor; the filing of a suit for recovery of land stops time under section 38 of the Limitation of Actions Act.

Reasoning

The court adopted the passage from Cheshire's Modern Law of Real Property approved in Wambugu v Njuguna and reaffirmed in Kiritu v Kabura and Murathe v Gathimbi: a merely formal or nominal entry no longer suffices; the owner must make a peaceable and effective entry or sue for recovery of the land. Letters, an ex parte District Officer ruling and a post-expiry criminal charge do not stop time.

p. 3
03

Whether adverse possession can be claimed by counter-claim

Holding

No - title by adverse possession must be sought by originating summons under Order XXXVI rule 3D; the counter-claim was misconceived and the orders made on it were set aside.

Reasoning

Despite Order XXXVI rule 3D of the Civil Procedure Rules, the learned Judge allowed the respondents to counterclaim for title by adverse possession. This Court has repeatedly held that such title is to be sought by originating summons under that rule. The cross-claim was therefore misconceived, though the defence of limitation still succeeded and the appellant's suit was dismissed.

p. 4

Legal principles established

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  • For adverse possession to succeed, the possession must be adequate, continuous and exclusive - adequate in continuity, publicity and extent.
  • The filing of a suit for recovery of land stops time from running for the purposes of section 38 of the Limitation of Actions Act; mere letters or informal demands do not interrupt adverse possession.
  • Mere writing of letters demanding vacation does not interfere with the possession of an adverse possessor.
  • Title by adverse possession must be sought by way of an originating summons under Order XXXVI rule 3D of the Civil Procedure Rules, not by counter-claim in an existing suit.

Court orders

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  1. 1.Appeal allowed to the extent that the orders made on the cross-claim (counter-claim) are set aside
  2. 2.The appellant's suit in the High Court stands dismissed with costs
  3. 3.The respondents may take such action to obtain title as they may be advised
  4. 4.No order as to the costs of this appeal
  5. 5.The order for costs in the superior court in favour of the respondents on the counter-claim is set aside

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RK
majority

Wrote the judgment

Philip Kiptoo Tunoi
majority

Wrote the judgment

AS
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 159 of 1992
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (appeal from the judgment and decree of the High Court)

Relief refused

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Eviction of the respondents from the suit land / vacant possession

The twelve-year limitation period had run out; the appellant's title to the suit land stood extinguished by adverse possession

p. 3

Respondents' claim to title by adverse possession by way of counter-claim

Title by adverse possession must be sought by originating summons under Order XXXVI rule 3D of the Civil Procedure Rules, not by cross-claim in a suit

p. 4

Costs

The appellant's suit in the High Court stands dismissed with costs; no order as to the costs of this appeal; the order for costs in the superior court in favour of the respondents on the counter-claim is set aside.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the defence of adverse possession to succeed, the possessor(s) must show that the possession was adequate, continuous and exclusive.
p. 2Requirements of adverse possession
Mere writing of letters does not, in our view, interfere with the possession of the respondents.
p. 3Letters do not interrupt adverse possession
it was held that the filing of a suit for recovery of land would stop time from running for the purposes of Section 38 of the Limitation of Actions Act
p. 3Filing suit stops limitation time
The claim for title by virtue of adverse possession by way of a cross-claim in a suit was in this case misconceived.
p. 4Procedure for claiming adverse possession
this appeal is allowed to the extent that orders made on the crossclaim (counter-claim) are set aside. However the defence of limitation succeeds and the appellant's suit in the High Court stands dismissed with costs.
p. 4Final orders / disposition
In all the circumstances we make no order as to the costs of this appeal and the order for costs in the superior court in favour of the respondents on the counter-claim is set aside.
p. 4Costs orders

Issues in the judgment

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minor

The judgment spells the first respondent's name inconsistently - 'MASAI ITUMO' in the cause title and 'Maasai Itumo' in the body.

minor

The judgment refers to the case as both 'Githua v Ndeete' and 'Githu v Ndeete' within the same quoted passage.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njuguna Ndatho v Masai Itumo, Mateo & Nguli Kyalo (Civil Appeal 231 of 1999) [2002] KECA 161 (KLR)", Case Analysis (2002). Civil Appeal No. 231 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/161/eng@2002-10-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.