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ELCDismissedNotice of Motion dated 1st September 2014 (suit number not stated in the judgment)· [2015] KEELC 816 (KLR)

Willington Njomo Gichanga v Lucy Wamaitha Kiarie, Samuel Kiarie (for and on behalf of the Estate of Onesmus Mwenje and Phyllis Nyambura Kinyanjui) & another [2015] KEELC 816 (KLR)

High Court of Kenya (Environment and Land jurisdiction, Kiambu)
19 June 2015
3,253 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop an eviction where the land buyer had no written sale agreement and couldn't claim adverse possession after entering with the owner's permission.

What this practically means

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Executive summary

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The plaintiff, Wellington Njomo Gichanga, moved the court by Notice of Motion dated 1st September 2014 under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules seeking to restrain the defendants from evicting him from a ¼ acre portion of L.R. NO. 76/364 Thindigua Kiambu pending the hearing of his suit. He claimed to have bought the portion from the late Onesmus Mwenje in 1986 and alternatively to have acquired it by adverse possession, having occupied it for over 12 years. The defendants, through Lucy Wamaitha Kiarie, denied any sale, asserting that Mwenje merely allowed the plaintiff, a laid-off workmate, to store goods in a charcoal shed which he then refused to vacate. They pointed to prior litigation: an eviction suit by Mwenje in 1988 and the plaintiff's own 2002 suit seeking specific performance of an agreement of sale. Applying the Giella v Cassman Brown principles, the court found no prima facie case: the alleged sale agreement was oral and thus unenforceable under section 3(3) of the Law of Contract Act, and the property having been conveyed to three joint tenants without defined shares, Mwenje could not have sold any portion, such a disposition being void under section 91(4) of the Land Registration Act, 2012. On adverse possession, the court held that a person entering with the owner's permission or under a sale agreement cannot adversely possess, and the plaintiff's litigation history showed his possession was contested and that he acknowledged the defendants' ownership. Damages would be adequate, as compensation discussions had occurred. The application was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiff disclosed a prima facie case with a probability of success

Holding

The plaintiff did not; his claim rested on an oral agreement void under section 3(3) of the Law of Contract Act and on an agreement, if any, that was void because the vendor was a joint tenant without a defined share

Reasoning

The court considered the pleadings and affidavit material. The alleged sale agreement of 1986 was oral, offending section 3(3) of the Law of Contract Act. Further, the head title was held by three joint tenants without defined shares, so Mwenje had no separate portion to sell; such a disposition is void under section 91(4) of the Land Registration Act, 2012.

p. 6
02

Whether the plaintiff's possession was adverse

Holding

No; the plaintiff entered with the permission of one co-owner pursuant to an alleged sale, and his possession was contested through prior eviction suits and his own suit seeking enforcement, which acknowledged the defendants' ownership

Reasoning

Possession founded on permission or a sale agreement is not adverse. Prior litigation, including RMCC No. 824 of 1988 seeking the plaintiff's eviction and the plaintiff's own CMCC No. 67 of 2002 seeking specific performance, showed possession was neither peaceful, continuous nor uninterrupted for over 12 years.

p. 5
03

Whether damages would be an adequate remedy

Holding

Yes; the parties had discussed compensation for the plaintiff's developments and the plaintiff himself had previously sought refund of purchase price and compensation

Reasoning

There was evidence of discussions valuing the plaintiff's developments with a view to compensation, and in CMCC No. 67 of 2002 the plaintiff had prayed for specific performance or alternatively refund and compensation, as well as general damages for breach of contract, indicating damages could adequately compensate him.

p. 6

Legal principles established

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  • A person who enters land with the permission of the owner, or in pursuance of a sale agreement, cannot claim adverse possession
  • An oral contract for the disposition of an interest in land is unenforceable under section 3(3) of the Law of Contract Act
  • A joint tenant has no separate share in jointly owned land and cannot deal with any portion without the involvement of the other joint owners; any such disposition is void

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 1st September 2014 is dismissed
  2. 2.Costs of the application to the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Law of Contract Act Cap 23 Laws of KenyaSection 3(3)
  • Land Registration Act, 2012Section 91(4)

Cases cited (5)

  • Giella –vs- Cassman Brown & Co. Ltd
    (1973) EA 358
  • Isabel Chelangat –vs- Samuel Tiro Rotich & 5 others
    (2012) eKLR
  • Muraguri Githitho –vs- Mathenge Thiongo
    (2009) eKLR
  • Waweru –vs- Richu
    (2007) EALR 403
  • Wanje –vs- Saikwa
    (NO.2) KLR 284
Jurisdiction invoked
Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules

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, "Willington Njomo Gichanga v Lucy Wamaitha Kiarie, Samuel Kiarie (for and on behalf of the Estate of Onesmus Mwenje and Phyllis Nyambura Kinyanjui) & another [2015] KEELC 816 (KLR)", Case Analysis (2015). Notice of Motion dated 1st September 2014 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/816/eng@2015-06-19

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