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ELCDismissedOriginating Summons filed 10th July 2008 (Mombasa/Malindi)· [2013] KEELC 1 (KLR)

Pricilla Gaceri Mugambi v Richard Karl Zips & 2 others [2013] KEELC 1 (KLR)

High Court of Kenya
4 October 2013
OAO. A. Angote
5,929 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff brought an Originating Summons on 10th July 2008 claiming entitlement to plot no. 816 (originally 703/47) Malindi, registered in the name of the Defendant, Richard Karl Zips, by adverse possession, and sought an order of partition carving out the 35m x 25m portion occupied by the Interested Parties. The Interested Parties, joined on their own application after reading the substituted service advertisement, opposed the claim, asserting that the Defendant had handed them the property in 1985 to look after, and that the Plaintiff became their tenant in 2000, renovating structures and paying Kshs.10,000 monthly rent until 2004. Viva voce evidence was taken. The court preferred the Interested Parties' account, finding it credible that the Defendant left the property in their care when he went abroad in 1985 and that the Plaintiff entered the property only in 2000 as a tenant. Her demand letters, distress for rent against her, issuance of postdated cheques to settle arrears, caveat registered as lessee, and newspaper notice searching for the Defendant or his kin demonstrated that she acknowledged another's title and lacked animus possidendi until about 2004. Applying Hughes v Griffin, the court held the owner remained in possession through the Interested Parties. The Plaintiff thus failed to prove 12 years of exclusive, adverse possession. The court also declined to determine the Interested Parties' counter-assertion of adverse possession, as they filed no counterclaim or section 38 application. The Originating Summons was dismissed with costs to the Interested Parties.

Key legal issues

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01

When the Plaintiff entered the suit property and whether her possession was adverse

Holding

The Plaintiff entered in the year 2000 with the permission of the Interested Parties as a tenant, not adversely in 1989 as she claimed

Reasoning

The court preferred the Interested Parties' evidence that the Defendant handed the property to the 2nd Interested Party in 1985 to look after, and that the Plaintiff rented premises in 2000 at Kshs.10,000 per month. Her demand letter responses, distress for rent, payment by cheques, caveat as lessee and newspaper notice searching for the owner showed she only discovered the true owner around 2004.

p. 8
02

Whether the Plaintiff had the requisite animus possidendi

Holding

She lacked the intention to dispossess the owner; her acknowledgements of the Interested Parties' title negated animus possidendi

Reasoning

Adverse possession requires both factual possession and intention to possess. The Plaintiff's payment of rent, issuance of postdated cheques to settle arrears, registration of a caveat claiming lessee's interest and agreement to monthly payments of Kshs.20,000 all amounted to acknowledgements of another's title, which defeat a claim of adverse possession.

p. 9
03

Whether the Interested Parties established their own title by adverse possession

Holding

No - they claimed adverse possession only in a Replying Affidavit without filing a counterclaim or an application under section 38 of the Limitation of Actions Act

Reasoning

The court noted that under section 38 a person claiming to be entitled by adverse possession must apply to the High Court for an order to be registered as proprietor. The Interested Parties made no such claim, so the court declined to express any view on their entitlement.

p. 9

Legal principles established

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  • The period for acquiring title by adverse possession in Kenya is twelve years under the Limitation of Actions Act
  • Where a true owner does not occupy land but places someone else in occupation without creating a tenancy, the owner remains in actual possession
  • A claimant for adverse possession must demonstrate animus possidendi; any acknowledgement of the true owner's title negates that intention
  • Proof of adverse possession is assessed by whether the title holder was dispossessed or discontinued possession for the statutory period, not merely whether the claimant was in possession

Court orders

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  1. 1.Dismissal of the Originating Summons filed on 10th July 2008
  2. 2.Costs of the suit awarded to the Interested Parties

Authorities

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Legislation

  • Limitation of Actions ActCap. 22 (12-year period)
  • Limitation of Actions Actsection 38

Cases cited (2)

  • Wambugu -vs- Njuguna
    KLR 172
  • Hughes Vs Griffin
    (1969) 1 ALL ER 460
Jurisdiction invoked
Section 38 of the Limitation of Actions Act, Cap. 22 (adverse possession claim to be brought before the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Pricilla Gaceri Mugambi v Richard Karl Zips & 2 others [2013] KEELC 1 (KLR)", Case Analysis (2013). Originating Summons filed 10th July 2008 (Mombasa/Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/1/eng@2013-10-04

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