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ELCPartially AllowedKerugoya ELC Case No. 38 of 2013 (Originating Summons filed 1st February 2010)· [2016] KEELC 509 (KLR)

Cyrus Muriithi Mbau v Gichuhi Githumbi Nyamu [2016] KEELC 509 (KLR)

Environment and Land Court
30 September 2016
2,027 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who openly occupies another person's land for over 12 years can win legal ownership through adverse possession, even over only part of the parcel.

What this practically means

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Executive summary

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The plaintiff, Cyrus Muriithi Mbau, brought an Originating Summons against the registered proprietor, Gichuhi Githumbi Nyamu, seeking to be declared entitled to approximately 0.21 hectares (50x100 feet) of L.R No. MWERUA/KAGIO/2636 by adverse possession, and to have that portion excised and registered in his name. He claimed he purchased plot No. 412 KAGIO in August 1997 from Peter Njima Kirori, took immediate possession, and built a permanent home in which he resides with his family. The defendant opposed, contending the plaintiff occupied plot No. 412 KAGIO, which he said was not part of his land, and counter-claimed mesne profits from a trespasser. The court identified the decisive question as whether the plot occupied was part of the defendant's land. It answered this from the defendant's own replying affidavit, in which he demanded mesne profits for the period the plaintiff occupied 'the plot'; as a registered proprietor can only claim mesne profits over his own land, the court concluded the occupied plot forms part of the suit land. Applying Kasuve v Mwaani Investments Ltd and related authorities, and noting that development of the land is the best evidence of possession, the court found the plaintiff had been in open, exclusive, continuous and uninterrupted occupation for over 13 years at filing, uninterrupted by the defendant's prior eviction suit against a third party. Judgment was entered for the plaintiff: declaration of entitlement by adverse possession, excision and registration of the 0.21 hectares in his name free from encumbrances, with each party to bear their own costs.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession to 0.21 hectares of MWERUA/KAGIO/2636

Holding

Yes. The plaintiff occupied the portion openly, exclusively, continuously and without interruption from August 1997, exceeding the statutory 12 years, and the defendant never evicted him or effectively asserted his title against him.

Reasoning

Possession is a fact to be proved on the land itself, and development of the land is perhaps the best evidence of possession. The plaintiff purchased the plot in August 1997, took possession and built a permanent home. The defendant's own affidavit claimed mesne profits for occupation of 'the plot', confirming the plot occupied is part of his land. A prior eviction suit against a third party did not interrupt the plaintiff's possession. By filing on 10th February 2010, occupation exceeded 13 years.

p. 3
02

Whether the portion occupied by the plaintiff (plot No. 412 KAGIO) forms part of the defendant's registered land

Holding

Yes. The defendant's own plea for mesne profits over 'the plot' the plaintiff occupies could only be made in respect of his own land, confirming the occupied plot is part of the suit land.

Reasoning

The defendant, as registered proprietor of the suit land, could only claim mesne profits from one illegally occupying his land. By demanding mesne profits for the plaintiff's occupation of 'the plot', the defendant conceded that the plot occupied is part of the suit land, defeating his assertion that the plaintiff occupied a different parcel to which he had no title to pass.

p. 3

Legal principles established

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  • A claimant entitled to land by adverse possession must prove exclusive possession of the land openly and as of right, without interruption, for 12 years either after dispossessing the owner or after discontinuation of possession by the owner on his own volition.
  • The combined effect of Sections 7, 13 and 17 of the Limitation of Actions Act is to extinguish the title of the registered proprietor in favour of an adverse possessor at the expiry of 12 years of adverse possession.
  • An adverse possessor may claim a portion of the suit land so long as the portion is well identified.
  • The doctrine of adverse possession is neither arbitrary nor an unconstitutional limitation of the right of property.

Court orders

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  1. 1.The plaintiff is declared to have become entitled to a portion approximately 0.21 hectares (50x100 feet) of the parcel of land known as L.R No. MWERUA/KAGIO/2636 by virtue of adverse possession thereof having been in open, exclusive, un-interrupted and continuous occupation of the same for a period of over 12 years
  2. 2.The aforesaid portion of 0.21 hectares now part of L.R No. MWERUA/KAGIO/2636 be excised therefrom and the plaintiff be registered as the proprietor thereof in place of Gichuhi Githumbi Nyamu free from all encumbrances
  3. 3.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 2010noted as promulgated in 2010 (no specific article cited)

Cases cited (8)

  • KASUVE VS MWAANI INVESTMENTS LTD & 4 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
  • STATE OF HARYANA VS MUKESH KUMAR & OTHERS
    (2012) A.I.R SCH 276
  • MTANA LEWA VS KAHINDI NGALA MWAGANDI
    C.A CIVIL APPEAL No. 56 of 2014 (MALINDI)
  • MAWEU VS LIU RANCHING & FARMING CO-OPERATIVE SOCIETY LTD
    1985 K.L.R 430
  • KIM PAVEY & 2 OTHERS VS LOISE WAMBUI NJOROGE & ANOTHER
    (2011) e K.L.R
  • GITHU VS NDEETE
    1984 K.L.R 776
Jurisdiction invoked
Original jurisdiction under Section 38 of the Limitation of Actions Act (claim for registration as proprietor 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, "Cyrus Muriithi Mbau v Gichuhi Githumbi Nyamu [2016] KEELC 509 (KLR)", Case Analysis (2016). Kerugoya ELC Case No. 38 of 2013 (Originating Summons filed 1st February 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/509/eng@2016-09-30

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