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ELCAllowedOriginating Summons filed 30th June 2011 (Kerugoya)· [2016] KEELC 184 (KLR)

Ruita Kabutu v Anna Wambui Eliza [2016] KEELC 184 (KLR)

High Court of Kenya
11 November 2016
BOB.N. Olao
2,494 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kirinyaga man who lived on, farmed and buried relatives on 5.8 acres since 1966 won ownership through adverse possession.

What this practically means

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Executive summary

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The plaintiff, Ruita Kabuta, brought an Originating Summons against the defendant, Anna Wambui Eliza, seeking a declaration of adverse possession of 5.8 acres out of land parcel KABARE/NYANGATI/826 in Kirinyaga County, registration as sole proprietor of that portion, an order directing the Land Registrar Kirinyaga to effect the registration, and costs. The plaintiff deponed that he purchased the 5.8 acres from the late Njuki Mbiro under a sale agreement dated 5th March 1966, entered the land the same year, and has since lived on, developed and cultivated it with his family. The defendant denied the plaintiff's occupation, asserting she and her deceased mother (the previous registered owner) had always occupied the land, and argued the claim failed because the title had changed hands. The suit was determined on affidavit evidence and written submissions, the defendant's counsel failing to file submissions or attend court. Applying Kasuve v Mwaani, Kimani Ruchire and Githu v Ndeete, the court found the plaintiff in open, exclusive and continuous occupation since 1966, evidenced by uncontroverted photographs showing crops, houses and graves, with no interruption proved. The change of registration to the defendant in September 2014 did not interrupt possession, her title being subject to rights already crystallized. Judgment was entered for the plaintiff, declaring him entitled to 5.8 acres by adverse possession and directing registration, with each party to bear their own costs.

Key legal issues

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01

Whether the plaintiff proved adverse possession of 5.8 acres of the suit land

Holding

Yes - the plaintiff and his family occupied 5.8 acres openly, exclusively and continuously since 1966, far exceeding the 12-year statutory period, and no interruption was proved

Reasoning

The court applied Kasuve v Mwaani and Kimani Ruchire on the elements of adverse possession. Uncontroverted photographs showed crops, houses and graves evidencing occupation since 1966. Even if the sale agreement was voidable for want of consent, time ran from October 1966, some 45 years before suit. No evidence of interruption by the defendant or predecessors was adduced, and the subsequent change of registration did not disturb the possession.

p. 4
02

Whether the change of ownership of the suit land (registration of the defendant in September 2014) defeated the claim

Holding

No - by the time the defendant was registered, the plaintiff's rights had already crystallized and the registration was subject to them

Reasoning

Relying on Githu v Ndeete, the court held that change of ownership does not interrupt adverse possession. The defendant's title issued on 21st September 2014 was therefore subject to the plaintiff's accrued rights, which only required a court order to declare. The court also endorsed Githu v Ndeete for the proposition that adverse possession may be acquired over part only of registered land.

p. 4

Legal principles established

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  • A claimant must prove exclusive, open possession as of right without interruption for 12 years, either after dispossessing the owner or where the owner discontinues possession on his own volition
  • Change of ownership of the land claimed does not interrupt adverse possession
  • A party can acquire by adverse possession only a part of land registered in the names of another

Court orders

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  1. 1.The plaintiff is declared to have become entitled by way of adverse possession of over 12 years to all that parcel measuring 5.8 acres comprised in the title No. KABARE/NYANGATI/826
  2. 2.The plaintiff be registered as the sole proprietor of 5.8 acres out of 3.04 Ha of the said parcel No. KABARE/NYANGATI/826
  3. 3.The Land Registrar Kirinyaga to register the plaintiff as the proprietor of 5.8 acres out of land parcel No. KABARE/NYANGATI/826
  4. 4.Such registration should as much as possible be in accordance to the portion that the plaintiff and his family now occupy
  5. 5.Each party to meet their own costs

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17, 37, 38
  • Land Registration Act 2012Section 28(h)
  • Land Act 2012Section 7
  • Constitution of Kenya 2010generally (new land laws following promulgation)

Cases cited (7)

  • KASUVE VS MWAANI INVESTMENTS LTD & FOUR OTHERS
    2004 1 K.L.R 184
  • WANJE VS SAIKWA
    1984 K.L.R 284
  • BENJAMIN KAMAU & OTHERS VS GLADYS NJERI
    C.A CIVIL APPEAL No. 2136 of 1996
  • MAWEU VS LIU RANCHING & FARMING CO-OPERATIVE SOCIETY LTD
    1985 K.L.R 430
  • KIM PAVEY & OTHERS VS LOISE WAMBUI NJOROGE & ANOTHER
    2011 e K.L.R
  • GITHU VS NDEETE
    1984 K.L.R 776
  • KIMANI RUCHIRE VS SWIFT RUTHERFORDS & CO. LTD
    1980 K.L.R 10
Jurisdiction invoked
Section 38 of the Limitation of Actions Act

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, "Ruita Kabutu v Anna Wambui Eliza [2016] KEELC 184 (KLR)", Case Analysis (2016). Originating Summons filed 30th June 2011 (Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/184/eng@2016-11-11

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