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ELCPartially AllowedNakuru ELC (OS) Nos. 131, 132, 133 & 134 of 2014 (Consolidated)· [2015] KEELC 218 (KLR)

Joseph Kimari Mucheru & 3 others v Sammy Kiyo Macharia & 4 others [2015] KEELC 218 (KLR)

Environment and Land Court of Kenya
24 September 2015
3,933 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded four family members ownership of land they had openly occupied for over 12 years, rejecting the owners' eviction claim.

What this practically means

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Executive summary

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This is a consolidated judgment of the Environment and Land Court at Nakuru in four Originating Summons suits (Nakuru HCCC Nos. 131, 132, 133 and 134 of 2014) in which four members of one family, the children and widow of the late Samuel Mucheru Wamoni, claimed title by adverse possession to four subdivisions (parcels 236, 240, 237 and 239) carved out of the parent parcel Londiani/Londiani Block 3/60, formerly registered to the late Franklin Munyoro Macharia and transferred to the defendants upon confirmation of the succession cause. The plaintiffs asserted continuous occupation since 1988, building homes, farming and burying relatives on the land. The defendants opposed the suits, contending that the claims were res judicata by reason of the prior suit Nairobi HCCC No. 1855 of 1983 between the parties' fathers and objection proceedings in Nairobi Succession Cause No. 1888 of 2002, and filed a counterclaim for eviction, relying on an agreement of 8 May 2014 allegedly permitting the plaintiffs to remain only until 31 December 2014. The court held that the 1983 suit was decided over plot No. 16, not parcel No. 60, the defendants having themselves argued as much in the succession objection, and that in any event no issue of adverse possession was ever canvassed in the earlier proceedings; the res judicata objection therefore failed. On the merits, the court found the plaintiffs had been in open, exclusive, quiet and uninterrupted possession for in excess of 12 years, following Githu v Ndeete that changes of proprietorship and subdivision do not interrupt time, and rejected the 2014 agreement as proof of permissive occupation given the uncontroverted allegation of coercion by the Chief. All four suits succeeded, the counterclaim was dismissed, and the plaintiffs were awarded the costs of the suits and the counterclaim.

Key legal issues

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01

Res judicata

Holding

The suits are not res judicata. The prior litigation (Nairobi HCCC No. 1855 of 1983) concerned parcel No. 16, not parcel No. 60, and neither prior suit canvassed a claim of adverse possession by the plaintiffs, who claimed independently and on their own behalf.

Reasoning

The court examined the decree in the 1983 suit and found it was over plot No. 16, not parcel No. 60; the defendants had themselves successfully argued the opposite in the succession objection proceedings, and were wavering to suit their case. Further, even assuming the litigation concerned parcel No. 60, neither that suit nor the succession objection involved any claim for adverse possession, and the present plaintiffs claimed independently of their father's estate. The res judicata objection therefore failed.

p. 5
02

Requirements for adverse possession and interruption of time

Holding

The plaintiffs were in open, exclusive, continuous possession since 1988, in excess of 12 years, and obtained title by adverse possession despite the 2004 subdivision and registration of the defendants.

Reasoning

The plaintiffs' possession was not denied; they farmed, built homes, raised families and buried relatives on the land without any attempt by the defendants or their father to dispossess them. Following Githu v Ndeete, subdivision, change of parcel description and change of proprietorship did not interrupt the running of time. Possession was adverse, not permissive.

p. 6
03

Whether occupation was permissive under the 8 May 2014 Chief's agreement

Holding

The agreement did not establish permissive occupation.

Reasoning

The document did not identify the land in issue, the two signatories could not bind all claimants, and the plaintiffs' uncontroverted allegation that they were threatened by the Chief to sign undermined its evidential value.

p. 6

Legal principles established

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  • A claim for adverse possession requires quiet and uninterrupted possession for in excess of 12 years, possession without force, without secrecy and without permission (nec vi, nec clam, nec precario).
  • A change in proprietorship, subdivision or change of parcel description does not interrupt the running of time for adverse possession.

Court orders

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  1. 1.That Joseph Kimari Mucheru is entitled, by way of adverse possession, to the land parcel Londiani/Londiani Block 3 (Kamuingi)/236
  2. 2.That Beth Wangari Njuguna is entitled, by way of adverse possession, to the land parcel Kericho/Londiani Block 3 (Kamuingi)/240
  3. 3.That Esther Njoki Mucheru is entitled, by way of adverse possession, to the land parcel Kericho/Londiani Block 3 (Kamuingi)/237
  4. 4.That Elijah Njoroge Mucheru is entitled, by way of adverse possession, to the land parcel Kericho/Londiani Block 3 (Kamuingi)/239
  5. 5.The respective defendants are ordered to execute all requisite documents to transfer the said properties to the plaintiffs within 30 days, failing which the Deputy Registrar to execute the same
  6. 6.The counterclaim of the defendants is dismissed
  7. 7.The plaintiffs shall have the costs of their respective suits together with the costs of the counterclaim

Authorities

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Cases cited (6)

  • Kanda Kimet vs Chepkiyeng Kimamet (Kimamet) Chebobei
    Eldoret HCCC No. 218 of 2000
  • Lelei A Tuei alias Joseph Lelein Kemei & Another vs Kipsuge A. Lelei alias Suk A. Lile
    Kericho HCCC No. 48 of 2004 (OS)
  • Abdulkarim vs Member of Lands
    (1958) EA 436
  • Kimani Ruchine & Another vs Swift, Rutherford Co Ltd & Another
    (1976-1980) KLR 1500
  • Murugami Gichembe vs Gunda Gichembe
    Nairobi HCCC No. 1258 of 1996 (2000) eKLR
  • Githu v Ndeete
    (1984) KLR 776
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims for adverse possession

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, "Joseph Kimari Mucheru & 3 others v Sammy Kiyo Macharia & 4 others [2015] KEELC 218 (KLR)", Case Analysis (2015). Nakuru ELC (OS) Nos. 131, 132, 133 & 134 of 2014 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/218/eng@2015-09-24

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