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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff disclosed a prima facie case with a probability of success
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
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.
Whether the plaintiff's possession was adverse
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
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.
Whether damages would be an adequate remedy
Yes; the parties had discussed compensation for the plaintiff's developments and the plaintiff himself had previously sought refund of purchase price and compensation
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.
Legal principles established
#- 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
#- 1.The plaintiff's Notice of Motion dated 1st September 2014 is dismissed
- 2.Costs of the application to the Defendants
- Jurisdiction invoked
- Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.