Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (Kitale Environment and Land Court suit)· [2015] KEELC 353 (KLR)

Emmy Eliviza Mbihya v Collins Lukaro Muloma & 2 others [2015] KEELC 353 (KLR)

Environment and Land Court
10 June 2015
1,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
The plaintiff sued the registered owners of L.R. No. Waitaluk/Mabonde Block 2/Machungwa/352 (0.60 Ha), a subdivision of Plot 15, seeking to be registered as owner of 1.05 acres by adverse possession. She testified that from 1998 she bought 10.05 points from the defendants' mother and from third parties, fenced the portion, and planted eucalyptus trees, nappier grass and vegetables. A surveyor confirmed she occupied 1.05 acres with clear boundaries. The defendants, acting through the second defendant, denied peaceful continuous occupation and objected that the plaintiff's sale documents related to different land. The court found that none of the plaintiff's purchases were from the suit land or Plot 15 - some were from Machungwa 'A' and some from Machungwa 'B' - rendering her claim untenable on the documents. Nevertheless, the court decided the adverse possession question. The plaintiff was in open possession from 1998, but the defendants were all minors when registered in 1998; under Section 22 of the Limitation of Actions Act they had six years after attaining majority to recover the land. In January 2009 the second defendant ploughed the land, an effective assertion of title which stopped time running, and the plaintiff's earlier suit (Kitale HCCC No. 54 of 2009, dismissed for want of prosecution) confirmed the interruption. Only 11 years had elapsed, one short of the statutory 12. Applying the requirements of adequate, continuous and exclusive possession, and the principle that an owner must take reasonable steps to re-enter or sue, the court held the claim could not succeed. The suit was dismissed with costs to the defendants on 10 June 2015.

Key legal issues

#
01

Whether the plaintiff acquired 1.05 acres of the suit land by adverse possession

Holding

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

Reasoning

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.

p. 3
02

Whether the defendants' minority enlarged the limitation period

Holding

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

Reasoning

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.

p. 3
03

Whether the plaintiff's purchases related to the suit land

Holding

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

Reasoning

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.

p. 2

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. 1.The plaintiff's claim for registration as owner of 1.05 acres of the suit land by adverse possession is dismissed
  2. 2.Costs of the suit awarded to the defendants

Authorities

#

Legislation

  • Limitation of Actions ActSection 22

Cases cited (2)

  • Njuguna Ndatho v. Masai Itumo & 2 Others
    2002 eKLR (Nakuru Court of Appeal Civil Appeal No. 231 of 1999)
  • Harrison Mbaria Mbogo & Another v. Mbutu Mutungi
    (1997) eKLR (Nairobi Court of Appeal Civil Appeal No. 19 of 1997)
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.