Edwin G. K. Thiongo & another v Gichuru Kinuthia & 2 others [2015] KECA 260 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that land occupied by family members isn't 'adversely possessed', and adverse possession claims must be filed by originating summons, not counter-claim.
What this practically means
#Executive summary
#Key legal issues
#Effect of an adopted arbitration award on subsequent litigation over the same land
The elders' award in the succession cause, adopted as a judgment of the court by consent, remained binding and the trial judge erred in making orders contrary to it.
The award allocated plot Dagoretti/Thogoto/836 to the vendor, acknowledging him as heir entitled to sell to the 1st appellant. Once confirmed as a judgment of the court by Aganyanya, J on 16th June 1998, that judgment stood unchallenged. The High Court therefore could not, in a later suit, effectively set aside or vary it by declaring the purchase fraudulent and granting the respondents the land.
Procedure for bringing a claim for adverse possession
A claim for adverse possession must be made by originating summons under Order 36 Rule 3D of the Civil Procedure Rules; a counter-claim is an improper vehicle.
The court endorsed its earlier decisions in Wilson Kenyenga v Joel Ombori and Lali Swaleh v Stephen Mathenge Wachira, which held the originating summons requirement mandatory with no discretion. The respondents' claim was pleaded in a defence and counter-claim, not by originating summons, so the trial judge erred in granting a declaration of adverse possession on that basis.
Whether the respondents had acquired title by adverse possession
No. Their occupation before the appellants' registration was permissive as family members; limitation began running only upon the 1st appellant's registration on 17th May 1990, and the suit filed on 3rd April 2002 preceded the expiry of 12 years.
The respondents were children of the late Mbaria Gachoka, the original owner, and lived on the land as family. Their occupation was therefore not hostile to the vendor. Adverse possession requires hostile, exclusive, continuous possession against the true owner for 12 years. Counting from the registration dates of the 1st appellant (17th May 1990) and the 2nd appellant's predecessor (25th April 1994/1995), the 12-year period had not elapsed when suit was filed in 2002.
Legal principles established
#- A claim for adverse possession must be brought by way of originating summons, not by counter-claim; the procedural provision is mandatory.
- An arbitration award adopted as a judgment of the court stands as a judgment and a court hearing a later suit cannot vary it by making orders contrary to the award.
- Where occupation of land is by virtue of family relationship to the former owner, the occupation is not adverse; limitation runs only from registration of the true owner against whom possession becomes hostile.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the High Court dated 14th September 2006 set aside
- 3.Respondents to vacate land parcels Dagoretti/Thogoto/1191 and Dagoretti/Thogoto/1192 within 6 months
- 4.Each party to bear his/her own costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 568 of 2002
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction (no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- David Kuria Njoroge v Shabir Hamisi & another [2019] KEELC 1347 (KLR)[2019] KEELC 1347 (KLR)9 Oct 2019applied
- Anestly Muthoni Mukobwa substituted for Joel Mukobwa Mwongera) v Kenya Pentecostal Holiness Church Wiru Branch through Registered Trustees [2018] KEELC 2942 (KLR)[2018] KEELC 2942 (KLR)20 Jun 2018applied
- Joseph Muthuri Ikunyua v James Muthuri Kinyua & 3 others [2017] KEELC 943 (KLR)[2017] KEELC 943 (KLR)22 Nov 2017
- Franklin Mutuma Nkonge & another v Andrew Murithi M’ndegwa & 2 others [2017] KEELC 147 (KLR)[2017] KEELC 147 (KLR)13 Nov 2017
- Ndorongo Gatheru & another v Norman Kariuki & 30 others [2017] KECA 451 (KLR)[2017] KECA 451 (KLR)30 Jun 2017applied
Cite this brief
#Cite this brief
Caselaw, "Edwin G. K. Thiongo & another v Gichuru Kinuthia & 2 others [2015] KECA 260 (KLR)", Case Analysis (2015). Civil Appeal No. 267 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/260/eng@2015-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.