Karuntimi Raiji v M’makinya M ’itunga [2013] KECA 514 (KLR)
The bottom line
#The Court of Appeal confirmed that a family living on land for decades can win ownership by adverse possession even against a registered title.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Mr. Mwongera M'Makinya, who substituted the deceased respondent, had legal capacity to conduct the suit without letters of administration
- 2.Whether the appellant's first registration under the Registered Land Act was absolute and indefeasible so as to defeat the respondent's claim
- 3.Whether the respondent occupied the lower part of the suit property by permission of the appellant
- 4.From what date the limitation period for adverse possession should be calculated
- 5.Whether the respondent's possession was interrupted by the civil suits filed in 1985 and 1990
- 6.Whether a claim for adverse possession survives the death of the claimant under the Law Reform Act
- 7.Whether the trial court erred in declaring a trust over the suit property
Key legal issues
#Legal capacity of the substituted plaintiff
The substitution order made by Etyang J. on 13th March 1997, made after hearing both counsel and never appealed against or set aside, conferred capacity on Mwongera M'Makinya to act as legal representative of the deceased.
The High Court had made a subsisting order substituting the deceased's son as legal representative after hearing both parties. No appeal was lodged against that order. So long as the order stands, the substituted person has legal capacity; further, the substitution application was filed within the one-year period required by Order XXIII, the filing date being the applicable guide. The ground therefore fails.
Indefeasibility of first registration versus adverse possession and overriding interests
Although the appellant held a first registration, indefeasibility is subject to the exceptions in sections 27, 28 and 30 of the Registered Land Act, including overriding interests of persons in actual occupation and rights being acquired under limitation law; a declaration of trust is also not precluded in respect of registered land.
Section 28 makes the proprietor's rights defeatable as provided in the Act, and section 30 preserves overriding interests including rights being acquired under limitation law and rights of persons in actual occupation. The respondent's occupation since 1954, planting crops and building houses, constituted such an overriding interest existing at the date of registration. The appellant's reliance on the absoluteness of first registration was therefore fallacious.
Permission or consent as negating adverse possession
There was no evidence of permission; the respondent entered in 1954 without consent and a rebuttable presumption of continuance applied after the 1973 registration, which the appellant failed to discharge; occupation for over 21 years was therefore adverse.
The respondent occupied from 1954 until death in 1996, a period of 41 years, and continued after registration in 1973 for over 21 years. No witness testified to any grant of permission. The presumption of continuance of the original terms of entry is a rebuttable presumption of fact, and the burden lay on the appellant, who did not discharge it. The occupation satisfied the nec vi, nec clam, nec precario standard.
Commencement date of the limitation period
The limitation period runs from registration of the appellant as proprietor on 22nd March 1973, not from 1954; the respondent's overriding interest nonetheless existed and was protected under section 30 as at the registration date.
Following Francis Gitonga Macharia v Muiruri Waithaka, time for adverse possession runs only from registration of the land in the name of the proprietor. Since registration occurred on 22nd March 1973, the 12-year period ran from that date. Separately, the respondent's overriding interest began in 1954 and was already in existence and protected under section 30 of the RLA when the appellant was registered.
Interruption of possession by prior suits
The civil suits of 1985 and 1990 did not interrupt the respondent's possession; he was asserting a claim of right and never acknowledged the appellant's title or gave up possession.
The prior suits were dismissed or their awards set aside without determination on merit, so res judicata did not apply. Following Ndatho v Itumo, mere filing of a suit does not physically disrupt possession. The respondent never acknowledged the appellant's title or surrendered possession; his occupation remained open, notorious and to the exclusion of the appellant, hence uninterrupted for over 21 years.
Survival of an adverse possession claim after death
The claim survived the respondent's death under section 2(1) of the Law Reform Act, which preserves all subsisting causes of action for the benefit of the estate, save those expressly excluded such as defamation and seduction.
Section 30(f) of the RLA preserves rights being acquired under limitation law, and adverse possession is founded on limitation of actions. The respondent's claim was subsisting at his death, and he had filed an Originating Summons to establish it. Section 2(1) of the Law Reform Act then vests the cause of action in his estate, the statutory exceptions not covering adverse possession.
Declaration of trust over the suit property
The trial judge erred in declaring a trust since trust was not pleaded in the Originating Summons, but this did not vitiate the outcome because the disposition rested on overriding interest, adverse possession and equity.
The court agreed with the appellant that the issue of trust was not pleaded and the judge erred in declaring one. However, the judge's course of action - dividing the land between the parties who had lived as neighbours since 1954 - was equitable, expedited disposal of a long-simmering dispute, and the appellate court, as a court of law and equity, would not leave a genuine claim without a remedy.
Legal principles established
#- The limitation period for adverse possession only starts running after registration of the land in the name of the registered proprietor, not from earlier occupation as a squatter on unregistered land.
- Indefeasibility of a first registration under the Registered Land Act is subject to the exceptions in sections 28 and 30, including the overriding interest of a person in actual occupation and rights being acquired under the law of limitation.
- Where an occupier entered land without permission and continues in occupation after the proprietor's registration, there is a rebuttable presumption of continuance that occupation remains without permission, and the burden of rebutting it lies on the proprietor.
- Mere filing of a suit for recovery of possession or confirmation of rights does not physically interrupt a continuing adverse possession.
- A claim to adverse possession subsisting at death survives for the benefit of the deceased's estate under section 2(1) of the Law Reform Act.
- A court, as a court of both law and equity, will not leave a party with a genuine claim without a remedy and may judiciously exercise equity to resolve a long-standing boundary dispute between neighbours.
Court orders
#- 1.The appeal is dismissed with costs
- 2.The Judgment and Orders of the High Court delivered on 25th September 2009 are confirmed and upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- HC Civil Case No. 251 of 1994
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (constitutional/statutory appellate jurisdiction not expressly cited in the judgment)
Relief refused
#Declaration that the appellant's first registration is absolute and indefeasible against the respondent
Sections 27, 28 and 30 of the Registered Land Act provide exceptions to indefeasibility, including overriding interests of persons in possession
Finding that the respondent's possession was by permission
No evidence of permission; the presumption of continuance favours possession on the same terms as entry, and the appellant did not discharge the burden of rebutting it
Finding that the claim for adverse possession did not survive the deceased respondent
Section 2(1) of the Law Reform Act preserves subsisting causes of action for the benefit of the estate
Costs
The appeal was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Sections 27, 28 and 30 of the repealed Registered Land Act (RLA) provide exceptions to indefeasibility of title.
The presumption stated above is a rebuttable presumption of fact and the burden of proof to shift the presumption is on the appellant; he has not discharged the burden.
we find that the claim for adverse possession against the appellant starts to run from this date and not 1954.
mere filing of a suit for recovery of possession may not disrupt possession by the adverse possessor because disruption is a physical thing.
Section 2 (1 ) of the Law Reform Act stipulates that on the death of any person, all causes of action subsisting against or vested in him shall survive against or as the case may be, for the benefit of, his estate.
It is inconceivable that a court of equity can leave a party with a genuine claim without a remedy.
We find that this appeal has no merit and is dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karuntimi Raiji v M’makinya M ’itunga [2013] KECA 514 (KLR)", Case Analysis (2013). Civil Appeal No. 325 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/514/eng@2013-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.