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ELCAllowedOriginating Summons dated 23rd April 2015· [2015] KEELC 858 (KLR)

Kunyumu & 4 others (As the Official and Trustees of the Sisters of Mary Mother of God-Mtwapa)) v National Land Commission (Environment and Land Case 62 of 2015) [2015] KEELC 858 (KLR)

Environment and Land Court
2 October 2015
OAO. A. Angote
1,198 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that 20+ years of open, continuous land use can earn you full ownership, even without a title deed.

What this practically means

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Executive summary

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The Officials and Trustees of the Sisters of Mary Mother of God-Mtwapa filed an Originating Summons dated 23rd April 2015 seeking a declaration that they are owners of L.R. No. MN/III/644-Mtwapa or, alternatively, that they acquired it by adverse possession; an order compelling the Respondent to issue a title document; a permanent injunction protecting their possession; and costs. Their case was that they had occupied, fenced and developed the suit property since 1991, farming it and constructing a school, while holding title to the neighbouring parcel MN/III/2639 where their Convent stands. Although served, the Respondent never filed a Replying Affidavit, and the suit proceeded to formal proof by viva voce evidence on 15th July 2015. Sister Benina Ndungwa Kinyumu testified and produced the Certificate of Registration of the Society and the Declaration of Trust, together with a map showing the suit property. The court found the evidence unchallenged and analyzed the distinction between adverse possession (possession aimed at acquiring title) and prescription (a non-possessory interest arising from long, continuous, open use). Relying on Section 7(d) of the Land Act, Section 28(h) of the Land Registration Act and Section 32(1)(c) of the Limitation of Actions Act, the court held that prescription applies in Kenya, that the statutory period is twenty years, and that the Applicants had used the land for more than twenty years. The court allowed the summons, declared the Applicants owners, ordered the Respondent to issue a title, granted a permanent injunction, and ordered each party to bear its own costs.

Key legal issues

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01

Distinction between adverse possession and prescription

Holding

Adverse possession aims at acquiring title through possession, whereas prescription is a non-possessory interest acquired through long continuous use of land

Reasoning

The court distinguished the two doctrines: with adverse possession the goal is to acquire title to real property, while prescription is directed towards acquiring an easement or non-possessory interest through long, continuous, open use. The court held that the law now permits acquisition of title even without possession where long use is shown.

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02

Whether the Applicants proved acquisition of the suit property by prescription

Holding

The Applicants proved use of the suit property for more than 20 years as a charitable organization, entitling them to a declaration of ownership

Reasoning

PW1's unchallenged evidence established occupation and use since 1991, exceeding the twenty-year statutory period. The Respondent did not file a Replying Affidavit nor defend the suit, and the court treated that as non-objection to issuance of a Certificate of Title to the Applicants.

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Legal principles established

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  • The doctrine of prescription is applicable in Kenya for acquisition of title to land under Section 7(d) of the Land Act and Section 28(h) of the Land Registration Act
  • Title to land may be acquired by prescription even without possession, upon long continuous use; the statutory period is twenty years
  • Where an easement has been enjoyed peacefully, openly as of right and without interruption for twenty years, the right is absolute and indefeasible

Court orders

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  1. 1.A declaration that the Applicants, the Sisters of Mary Mother of God-Mtwapa, are the owners of L.R. No. MN/III/644-Mtwapa
  2. 2.An order compelling the Respondent to issue to the Applicants a title document in respect of L.R. No. MN/III/644-Mtwapa
  3. 3.A permanent injunction restraining the Respondent or any person purporting to act on his behalf from offering for sale, allotting, subdividing, taking over, dispossessing, alienating, reclaiming, harassing the Applicants or interfering with their occupation and possession of the suit property
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Land ActSection 7(d)
  • Land Registration ActSection 28(h)
  • Limitation of Actions ActSection 32(1)(c)
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act in respect of title to land (L.R. No. MN/III/644-Mtwapa)

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, "Kunyumu & 4 others (As the Official and Trustees of the Sisters of Mary Mother of God-Mtwapa)) v National Land Commission (Environment and Land Case 62 of 2015) [2015] KEELC 858 (KLR)", Case Analysis (2015). Originating Summons dated 23rd April 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/858/eng@2015-10-02

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