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ELCDismissedNot stated in the judgment (summons dated 9th August, 2005)· [2015] KEELC 841 (KLR)

Murigi alias John Munyua Waweru v Muiruri alias Joseph Muiruri Tiras Mbogo & another (Environment & Land Case 609 of 2014) [2015] KEELC 841 (KLR)

Environment and Land Court
19 November 2015
LWL N Waithaka
3,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, step-son of the 1st defendant, sought by originating summons dated 9th August 2005 a declaration that he was entitled to a half share of L.R Nos. Loc.11/Muchungucha/2263 and 2264 (subdivisions of the original Loc.11/Muchungucha/594) by adverse possession, that the defendants' titles thereto had been extinguished under Sections 37 and 38 of the Limitation of Actions Act, that the defendants held the half share in trust for him, and an order for transfer. The 2nd defendant opposed, contending that trust and adverse possession are mutually exclusive, that occupation was consensual, and that time could only run from the dismissal of the plaintiff's claim by the Land Disputes Tribunal on 27th July 2004. The court relied on the Tribunal record and the testimony of the plaintiff's wife, which showed the family was harboured by the defendant's mother on a portion she gave them. Applying Salesio M'itonga v M'ithara, the court held that trust is a question of fact which the plaintiff failed to prove, and that Section 116 of the Evidence Act did not shift the burden. On adverse possession, the court found the entry consensual, that any adversity began only after the Tribunal's decision, and that as against the 2nd defendant time ran only from his registration. Suit filed in 2005 was therefore premature, barely a year having elapsed. The suit was dismissed with costs to the 2nd defendant on 19th November 2015.

Key legal issues

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01

Whether the plaintiff established a trust in his favour over the suit land

Holding

The plaintiff failed to prove the alleged trust; the evidence showed the land he occupied was given by the defendant's mother, not held in trust by the defendant

Reasoning

Relying on the Court of Appeal decision in Salesio M'itonga v M'ithara, the court held that a party alleging trust bears the burden of proving it by evidence. The plaintiff's wife's testimony before the Land Disputes Tribunal showed she was accommodated in the defendant's mother's house and later shown where to build, with no evidence of when or why the mother gave the portion. This was inconsistent with a trust by the 1st defendant, and Section 116 of the Evidence Act did not shift the burden.

p. 5
02

Whether the plaintiff acquired title by adverse possession

Holding

No; the entry was consensual and time, if any, ran only from the Tribunal's decision of 27th July 2004, barely a year before suit

Reasoning

The court found the plaintiff's entry and occupation was with permission of the defendant's family, so possession was not adverse. Where entry is consensual, time runs only from repudiation of the owner's title, which occurred at the earliest when the plaintiff's Tribunal claim was dismissed on 27th July 2004. As against the 2nd defendant, time ran only from his registration. Suit filed in 2005 fell far short of the twelve-year period required under the Limitation of Actions Act.

p. 7

Legal principles established

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  • Trust is a question of fact which must be proved by evidence by the party alleging it
  • Possession under a consensual entry does not become adverse until the possessor repudiates the true owner's title
  • Time for adverse possession against a subsequent registered proprietor runs only from the date that proprietor obtains title

Court orders

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  1. 1.The suit is dismissed
  2. 2.Costs of the suit awarded to the 2nd defendant

Authorities

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Legislation

  • Limitation of Actions ActSections 37 and 38
  • Limitation of Actions ActSection 7
  • Evidence ActSection 116

Cases cited (7)

  • Tayebali Adamji Alibhai vs. Abdulhussein Adamji Alibhai
    (1938) EACA
  • Peter Wanyoike Gathure vs. A. Beverly
    (1965) E.A 514
  • Mbugua Njuguna v. Elijah Mburu Wanyoike & another
    Nairobi Court of Appeal Civil Appeal No. 27 of 2002
  • Githu v. Ndeete
    (1984) KLR 776
  • Ndatho v. Itumo & others
    (2002) 2 KLR 638
  • Wasui v. Musumba
    (2002) 1 KLR 396
  • Salesio M'itonga v. M'ithara & 3 Others
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction under Sections 37 and 38 of the Limitation of Actions Act (claim for title by adverse possession)

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, "Murigi alias John Munyua Waweru v Muiruri alias Joseph Muiruri Tiras Mbogo & another (Environment & Land Case 609 of 2014) [2015] KEELC 841 (KLR)", Case Analysis (2015). Not stated in the judgment (summons dated 9th August, 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/841/eng@2015-11-19

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