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ELCAllowedOriginating Summons dated 11.12.2015· [2017] KEELC 399 (KLR)
Patrick Lihanda & 2 others v Esther Wairimu Mwangi & another [2017] KEELC 399 (KLR)
Environment and Land Court / High Court at Murang'a
14 December 2017
1,856 words in judgment
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·~7 min to read original · ~4 min briefThe bottom line
#A Kenyan church that occupied land for over 20 years after buying it won ownership through adverse possession, even though the seller's title was never formally transferred.
What this practically means
#Executive summary
#The Board of Trustees of the Pentecostal Assemblies of God (Patrick Lihanda, Reverend Stephen N. Karigu and Reverend James Ogandi) filed an Originating Summons on 11 December 2015 seeking a declaration that 0.2 acres of land parcel Loc.3/Gacharage/73, on which the PAG Mung'aria Church stands, had been extinguished from the title of the registered owner, Robinson Gathuku Karanja (deceased), through adverse possession, and that the Plaintiffs be registered as proprietors. The defendants, sued as administrators of the deceased's estate, were served on 20 January 2016 but did not enter appearance, and the suit proceeded as an undefended formal proof hearing. The second plaintiff testified that the deceased sold the 0.2 acres to the Church by an agreement dated 23 September 1993 for Kshs. 120,000, with the balance paid on 15 August 1994, whereupon the Church took possession, fenced the land and built a sanctuary, classrooms, kitchen, store and ablution block. Applying sections 7, 13 and 38 of the Limitation of Actions Act and section 28(h) of the Land Registration Act, and relying on Leonale Ngima Karani v William Wanyama Ndege, Public Trustee v Kamau Wanduru and Githu v Ndeete, the court held that time ran from possession in 1993/payment of the last instalment in 1994 and that the Church's open, peaceful and uninterrupted occupation of over 22 years conferred title by adverse possession by 2005. The court declared the estate's title extinguished, ordered registration of the 0.2 acres in the trustees' names, directed the defendants to execute transfer documents (with the Deputy Registrar empowered in default), and awarded costs to the Plaintiffs.
Key legal issues
#01
Whether the Plaintiffs proved adverse possession of the 0.2 acre portion
Holding
Yes - the Church entered in 1993 under a sale agreement, was put in possession, paid the last instalment in 1994, and occupied openly, peacefully and without interruption for over 22 years; title by adverse possession accrued by 2005.
Reasoning
The court applied section 7 and 13 of the Limitation of Actions Act and section 38(1). It found the Church entered through a sale agreement in 1993 and was immediately put into possession, fenced the land and built a sanctuary. Time ran from payment of the last instalment in 1994/possession in 1993, and neither the vendor nor his estate interrupted the occupation, so title accrued after 12 years.
p. 4
Legal principles established
#- In a sale of land, the purchaser's possession becomes adverse to the registered owner after payment of the last instalment of the purchase price.
- Mere change in ownership does not defeat the right of an adverse possessor who is in the process of acquiring a prescriptive right.
- Adverse possession is an overriding interest under the Land Registration Act that subsists though not noted on the register.
Court orders
#- 1.Declaration that the deceased's and/or his estate's title to a portion of 0.2 acres of land parcel Loc.3/Gacharage/73 on which stands Pentecostal Assemblies of God Mung'aria Church has become extinguished by operation of the law and that the Plaintiffs have become entitled to the said 0.2 acres through adverse possession
- 2.That the said portion of 0.2 acres be registered in the names of Patrick Lihanda, Reverend James Ogendi and Reverend Stephen N. Karigu, the Board of Trustees of Pentecostal Assemblies of God Church of Kenya
- 3.That the Respondents and/or any successor in title claiming through the deceased to execute all necessary documents to effectuate the transfer of the 0.2 acres, and in default the Deputy Registrar be empowered to do so
- 4.The costs of the suit to be paid by the Respondents
- Jurisdiction invoked
- Section 38(1) of the Limitation of Actions Act, Cap 22 - application to the High Court for an order that a person entitled by adverse possession be registered as proprietor
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Lihanda & 2 others v Esther Wairimu Mwangi & another [2017] KEELC 399 (KLR)", Case Analysis (2017). Originating Summons dated 11.12.2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/399/eng@2017-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.