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ELCDismissedOriginating Summons (Mombasa ELC)· [2017] KEELC 201 (KLR)

Nyanje Mwanbodze Mwanjirani v Anastacia Wanjiku Kamau [2017] KEELC 201 (KLR)

Environment and Land Court
17 October 2017
LKL. Komingoi
1,611 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court dismissed a man's claim to land he occupied for decades because peaceful, uninterrupted possession for 12 years was never proven.

What this practically means

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Executive summary

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The Plaintiff/Applicant filed an Originating Summons dated 23rd September 2014 under Order 37 of the Civil Procedure Rules seeking a declaration that he is the proprietor of LR. No Kwale/Gunduni/398 by adverse possession, an order that he be registered as owner and issued with a title deed, and costs. He claimed to have bought the land from Mzee Jumaa Mwamtunda for Kshs 3,000/= and to have occupied it for over sixty years. The Respondent, administrator of the estate of her late husband Michael Kihura who bought the land from Mohammed Abdalla Pongwe in 1988, produced a title issued on 6th June 2012. Directions converted the summons and replying affidavit into pleadings, and the matter proceeded by viva voce evidence. The court framed three issues: entitlement to declaration by adverse possession, entitlement to registration, and costs. Relying on Kasuve v Mwaani Investments and Kimani Ruchere v Swift Rutherfords, the court held that the Applicant failed to prove exclusive, open, peaceful and uninterrupted possession for 12 years. He could not prove the purchase, did not appeal the adjudication committee decision requiring him to vacate after compensation, admitted accepting Kshs 100,000/= from Francis Waiganjo to vacate, and faced multiple disputes including an eviction suit. Further, the Respondent's title issued on 6/6/2012 meant only two years had run, so the claim had not crystallised. The suit was dismissed with each party bearing their own costs, dated and delivered at Mombasa on 17th October 2017.

Key legal issues

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01

Whether the Applicant acquired title by adverse possession

Holding

No - possession was interrupted and not peaceful, and time had not run against the Respondent's 2012 title

Reasoning

The Applicant failed to prove the purchase from Mzee Jumaa Mwamtunda, could not recall the date, and did not appeal the adjudication committee decision which required him to vacate after compensation for crops. He admitted accepting Kshs 100,000/= from Francis Waiganjo to vacate, which he did not rebut. Multiple disputes over his occupation showed possession was not peaceful or uninterrupted.

p. 3
02

When time for adverse possession begins to run against a registered owner

Holding

Time runs from the date the Respondent's title was issued (6/6/2012), so the claim had not crystallised

Reasoning

The suit property was registered in the Respondent's name with title issued on 6/6/2012. Under Sections 24 and 25 of the Land Registration Act 2012 she is the absolute proprietor. For a 12-year period to have accrued, the Applicant's occupation must post-date that title by 12 years; only two years had elapsed when the suit was filed in 2014.

p. 3

Legal principles established

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  • To be entitled to land by adverse possession the claimant must prove exclusive, open possession as of right and without interruption for 12 years
  • A claimant must prove possession nec vi, nec clam, nec precario, with the owner's knowledge (actual or constructive) and continuous possession

Court orders

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  1. 1.The Plaintiff/Applicant's suit is dismissed
  2. 2.Each party to bear his/her own costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 37 Rules 1, 2 and 15
  • Civil Procedure ActSection 3A
  • Limitation of Actions ActSections 7, 9, 13 and 38
  • Land Registration Act 2012Sections 24 and 25

Cases cited (7)

  • Peter Mbiri Michuki v Samuel Mugo Michuki
    (2014) eKLR
  • Virginia Wanjiku Mwangi v David Mwangi Jotham Kamu
    (2013) eKLR
  • Kasuve v Mwaani Investment Limited and 4 Others
    (2004) KLR 184
  • Mbira v Gichuhi
    (2002) 1 EA 138
  • Sophie Wanjiku John v Jane Mwihaki Kimani
    Nairobi ELC No. 490 of 2010
  • Francis Gicharu Kariri v Peter Njoroge Mairu
    Nairobi Civil Appeal No. 293 of 2002
  • Kimani Ruchere v Swift Rutherfords and Company Limited
    (1980) KLR 16
Jurisdiction invoked
Order 37 Rules 1, 2(1) and 15 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act (adverse possession claim under 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, "Nyanje Mwanbodze Mwanjirani v Anastacia Wanjiku Kamau [2017] KEELC 201 (KLR)", Case Analysis (2017). Originating Summons (Mombasa ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/201/eng@2017-10-17

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