Emmy Eliviza Mbihya v Collins Lukaro Muloma & 2 others [2015] KEELC 353 (KLR)
The bottom line
#A Kenyan court dismissed an adverse possession claim because the owner re-entered the land just before the crucial 12-year period elapsed.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff acquired 1.05 acres of the suit land by adverse possession
The claim fails; the plaintiff had been in possession for only 11 years before her possession was interrupted, one year short of the statutory 12-year period
The plaintiff took possession in 1998 and occupied 1.05 acres, which the second defendant admitted. However, in January 2009 the second defendant ploughed the land and the plaintiff filed Kitale HCCC No. 54 of 2009, an effective assertion of the owners' title which stopped time running. At that point only 11 years had elapsed. Additionally, the defendants were minors upon registration in 1998, and under Section 22 of the Limitation of Actions Act they had six years after attaining majority to sue, expiring 18/10/2008, before the 12-year period ran.
Whether the defendants' minority enlarged the limitation period
Yes; under Section 22 of the Limitation of Actions Act the defendants, being minors at registration, were under disability and had six years from attaining majority to recover the land
All three defendants were minors when registered as owners on 19/5/1998. Section 22 of the Limitation of Actions Act placed them under disability and gave them six years after the disability ended to bring an action to recover the land. The second defendant turned 18 on 18/10/2002 and had until 18/10/2008 to file a claim but did not do so.
Whether the plaintiff's purchases related to the suit land
The plaintiff's documents showed purchases from L.R. No. 3766/1/15 and Plot No. 178(B), not from the suit land or Plot 15 from which it was subdivided
The court traced the plaintiff's sale agreements and found that none of the purchases were from the suit land or Plot 15; some points were bought from Machungwa 'A' and some from Machungwa 'B'. The surveyor confirmed Plot No. 3766/1/15 was not in the mutation form. The court held this rendered her claim untenable but proceeded to decide the adverse possession question.
Legal principles established
#- For a claim of adverse possession to succeed, the possession must be adequate, continuous and exclusive, and adverse to the proprietor in continuity, publicity and extent
- It is the owner of the land who is obliged to take reasonable steps to re-enter his land, whether by peaceful means or by instituting action to assert his rights
- An effective step by the proprietor to assert title, including ploughing the land and filing suit, interrupts the running of time in favour of the adverse possessor
Court orders
#- 1.The plaintiff's claim for registration as owner of 1.05 acres of the suit land by adverse possession is dismissed
- 2.Costs of the suit awarded to the defendants
- Jurisdiction invoked
- Original jurisdiction to determine a claim for title to land by adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emmy Eliviza Mbihya v Collins Lukaro Muloma & 2 others [2015] KEELC 353 (KLR)", Case Analysis (2015). Not stated in the judgment (Kitale Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/353/eng@2015-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.