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ELCPartially AllowedELC Case No. 229 of 2013 (O.S)· [2015] KEELC 537 (KLR)

Paul Macharia Wagunya v Mwangi Macharia Wagunya & another [2015] KEELC 537 (KLR)

Environment and Land Court of Kenya
23 April 2015
2,252 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A man who occupied land for 21 years lost his ownership claim but won Kshs 1.62 million compensation because the buyer who resold breached their 1987 sale agreement.

What this practically means

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Executive summary

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The plaintiff filed an originating summons under Section 38 of the Limitation of Actions Act seeking registration as proprietor of Loc.8/Matharite/1580 by adverse possession, alternatively compensation of Kshs.1,619,800. He deposed that in 1987 he bought 1.11 acres from the 1st defendant under a sale agreement incorporating the Law Society's Conditions of Sale, paid Kshs.24,500, took possession, planted tea, erected houses, and remained in occupation for 21 years until the 1st defendant subdivided the original parcel and transferred the suit portion to the 2nd defendant in 2008. The 2nd defendant countered that he bought the property free of encumbrances, that the plaintiff's possession was interrupted by litigation and his entry in 2008, and that the plaintiff was compensated through a larger share of Kaburu Wagunya's estate. The court held, applying Tayebali Adamji Alibhai and Peter Wanyoike Gathure, that time for adverse possession runs only from the grant of the certificate of title; since the defendants' titles were issued in 2004 and 2008 and the suit was filed in 2013, the 12-year period had not accrued and the adverse possession claim was unmaintainable. On the alternative claim, the court found the 1st defendant in breach of the 1987 agreement, as no notice to remedy default was issued under the Law Society's Conditions of Sale. Judgment was entered for the plaintiff in terms of prayers 4 and 5, compensation assessed on the plaintiff's 2013 valuation of Kshs.1,620,000, with costs to the defendants.

Key legal issues

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01

Whether the plaintiff's adverse possession claim was maintainable against the defendants

Holding

The claim was not maintainable because the defendants' titles were issued in 2004 and 2008, and the suit filed in 2013, less than 12 years later

Reasoning

The court adopted the principle from Tayebali Adamji Alibhai and Peter Wanyoike Gathure that time for adverse possession runs from the grant of the certificate of title. Since the titles were issued in 2004 and 2008 respectively and suit was filed in 2013 (about 9 and 5 years later), the statutory 12-year period under Section 7 of the Limitation of Actions Act had not accrued against either title.

p. 4
02

Whether the 1st defendant breached the 1987 sale agreement

Holding

The 1st defendant was in breach; as the agreement incorporated the Law Society's Conditions of Sale, he could only opt out after notice to remedy default within 21 days, which was never issued

Reasoning

The court found the sale agreement between the plaintiff and 1st defendant valid and binding. Because it incorporated the Law Society's Conditions of Sale, a party seeking to exit for breach was obliged to issue a notice calling upon the other to remedy the default within 21 days. No such notice was issued, so the 1st defendant's purported exit and transfer to the 2nd defendant was in breach. The assertion that the plaintiff was compensated through a larger share of Kaburu's estate was unsupported by evidence.

p. 4
03

Whether the plaintiff should be compensated at market value with developments

Holding

Judgment entered in terms of prayers 4 and 5, using the plaintiff's 2013 valuation of Kshs. 1,620,000 as it captured current developments

Reasoning

The court accepted the plaintiff's valuation conducted in 2013 over the 2nd defendant's 2008 valuation because the former captured current developments. It also held that the 2nd defendant would suffer no prejudice since the 1st defendant undertook to indemnify him against claims arising from their agreement.

p. 4

Legal principles established

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  • A claim for adverse possession can only be brought against a registered proprietor of the land, and time runs only from issuance of title
  • In respect of registered land, adverse possession dates from the granting of the certificate of title

Court orders

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  1. 1.The originating summons allowed in terms of prayers 4 and 5 of the Originating Summons, namely that the defendants compensate the plaintiff the market value of the suit property and developments thereon as per the plaintiff's 2013 valuation (Kshs. 1,620,000)
  2. 2.Costs of the suit borne by the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Limitation of Actions ActSection 38
  • Limitation of Actions Act (Cap 22)Section 7

Cases cited (3)

  • Beatrice Syokau Gatumbu v Kenya Airports Authority & 2 Others
    [2012] eKLR
  • Tayebali Adamji Alibhai – Vs – Abdulhussein Adamji Alibhai
    (1938) 5 E.A.C.A 1
  • Peter Wanyoike Gathure – Vs – A. Beverly
    (1965) E.A 514
Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act (adverse possession claim by originating summons)

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, "Paul Macharia Wagunya v Mwangi Macharia Wagunya & another [2015] KEELC 537 (KLR)", Case Analysis (2015). ELC Case No. 229 of 2013 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/537/eng@2015-04-23

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