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Court of AppealAllowedCivil Appeal No 52 of 2012· [2015] KECA 363 (KLR)

Patrick Magu Mwangi Kimunyu v Joreth Limited [2015] KECA 363 (KLR)

Court of Appeal of Kenya
9 October 2015
WKW. KaranjaPhilomena Mbete MwiluP. M. MwiluSKS. ole Kantai
3,292 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that twelve years of open, uninterrupted occupation can transfer land ownership, even when you bought from someone other than the registered owner.

What this practically means

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Executive summary

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This is a first appeal from Muchelule, J., who dismissed the appellant's originating summons claiming registration as proprietor of Plot No 290, Thome Farmers No 5 Limited (now LR No 13330/41) by adverse possession. The appellant bought a share in the land-buying company in 1995, entered the plot, built a home and farmed it for over fifteen years. The trial judge held that his possession was permissive, flowing through the sellers and Thome Farmers No 5 Limited, and so could not be adverse to the registered owner, Joreth Limited, which did not oppose the summons but cross-examined the appellant. Allowing the appeal, the Court of Appeal re-evaluated the evidence as it was bound to do on a first appeal. It restated the statutory framework under sections 7, 17 and 38(1) of the Limitation of Actions Act and the requirement of open, continuous, exclusive possession for twelve years. It held that possession taken pursuant to a purchase from shareholders of the land-buying company was not licensed by the respondent, which had had no dealings with the appellant, and was therefore adverse to the respondent's title. On interruption, the Court followed the Kiritu v Kabura and Githu v Ndeete line that the filing of a recovery suit stops time only where the owner asserts his right against the possessor: the respondent's 1992 suit, to which the appellant was a stranger and of which he was unaware, was no such assertion. The appeal was allowed, the High Court judgment set aside, and the appellant granted the declaratory and rectification orders sought, with costs in both courts.

Key legal issues

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01

Whether possession taken under a purchase from shareholders of a land-buying company is permissive so as to defeat an adverse possession claim

Holding

The appellant's possession was adverse, not permissive, because it derived from a sale agreement with third parties, not from any licence of the registered owner who could not have licensed him.

Reasoning

The trial judge found the possession permissive because the appellant occupied through the sellers and Thome Farmers No 5 Limited. The Court of Appeal rejected this: the appellant had no dealings with the respondent; his possession flowed from his purchase of shares with the attendant interest in the plot. Since there was no dispute the respondent was the registered proprietor and it had no relationship with the appellant, it could not have granted him a licence; his occupation was therefore without its consent and adverse to its title.

p. 5
02

Whether the respondent's 1992 suit, settled by consent in 2002, interrupted the appellant's possession

Holding

The 1992 suit did not interrupt possession because the appellant was not a party, did not know of it, and no evidence of its disposition was tendered.

Reasoning

Following the line of authority in Kiritu v Kabura and Githu v Ndeete, the filing of a suit for recovery of land stops time running only as an assertion of the owner's right against the adverse possessor. The appellant testified he was unaware of the 1992 suit, was never enjoined, and no evidence showed its outcome. A suit that neither binds nor is directed at the possessor is not an effective assertion of the owner's right and does not stop the limitation period.

p. 5
03

The legal requirements for a claim of adverse possession under the Limitation of Actions Act

Holding

A claimant must prove open, continuous, exclusive and uninterrupted possession for at least twelve years, without force, secrecy or evasion.

Reasoning

The Court restated the statutory framework: section 7 bars actions to recover land after twelve years; section 17 extinguishes the owner's title; section 38(1) permits the adverse possessor to apply for registration. Drawing on Ndatho v Itumo and Daniel Kimani Ruchine v Swift, Rutherford Co Ltd, the possession must be adequate in continuity, publicity and extent, and exclusive and uninterrupted for twelve years before the claim is filed.

p. 3

Legal principles established

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  • Possession pursuant to a sale agreement with a third party (shareholders of a land-buying company), rather than with the registered owner, is not permissive possession of the registered owner and is adverse to that owner's title.
  • A suit for recovery of land filed by the registered owner stops time running for adverse possession only where it is asserted against the adverse possessor; a suit to which the possessor was not a party and of which he had no notice does not interrupt his possession.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the High Court is set aside
  3. 3.The appellant is entitled to the orders sought in his summons, namely a declaration of title by adverse possession and rectification of the register to enter him as proprietor of the suit property
  4. 4.The appellant shall have the costs of the appeal and in the Superior Court

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSections 9(1) and 13
  • Real Property Limitation Act 1833 (England)
  • Limitation Act 1939 (England)

Cases cited (15)

  • Nicholas Njeru v Attorney General & 8 others
    [2013] eKLR (Civil Appeal 110 of 2011)
  • Selle & Another v Associated Motor Board Company Ltd And Others
    [1968] 1 EA 123
  • Ndatho v Itumo & 2 Others
    [2002] 2 KLR 637
  • Daniel Kimani Ruchine & Others v Swift, Rutherford Co Ltd & another
    [1977] eKLR
  • Wanyoike Gathure v Beverly
    [1965] EA 514
  • Francis Gicharu Kariri v Peter Njoroge Mairu
    [2005] eKLR (Civil Appeal No 293 of 2002)
  • Titus Kigoro Munyi v Peter Mburu Kimani
    [2015] eKLR (Civil Appeal No. 28 of 2014)
  • Mawji v Hasham and another consolidated with Greenfield Investment Ltd and Another
    [2010] 2 EA 296
  • Joseph Mutafari Situma v Nicholas Makhanu Cherongo
    [2007] eKLR (Civil Appeal 351 of 2002)
  • Samuel Miki Waweru v Jane Njeri Richu
    Civil Appeal No 122 of 2001 (unreported)
  • William Gatuhi Murathe vs. Gakuru Gathimbi
    Civil Appeal No. 49 of 1996 (unreported)
  • Joseph Gahumi Kiritu vs. Lawrence Munyambu Kabura
    Civil Appeal No. 20 of 1993 (unreported)
  • Githua v Ndeete
  • Muthoni v Wanduru
  • West Bank Estates Ltd v Arthur
    [1966] 3 WLR 750
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No 59 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate jurisdiction conferred on the Court of Appeal (the judgment does not cite a specific provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Patrick Magu Mwangi Kimunyu v Joreth Limited [2015] KECA 363 (KLR)", Case Analysis (2015). Civil Appeal No 52 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/363/eng@2015-10-09

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