Kariuki Murunji v Magdalene Wairimu Wanjohi [2017] KEELC 1523 (KLR)

The registered owner was Wanjohi Caca Njeri, registered in 1962. Wanjohi Caca Wambui, an imposter taking advantage of similar family names, purported to sell and gave possession; the transaction was objected to at the Land Control Board stage and collapsed. A vendor without legal capacity could not pass title, so the contract was mooted and became null, illegal and void. The plaintiff himself admitted he occupied under an illegal contract, which is why the court analysed the claim purely in limitation terms.

Although entry was under a void contract, the plaintiff occupied openly, peacefully and without force from 1976. The true registered owner, Wanjohi Caca Njeri, knew of the occupation and had a right to evict but never did. Time therefore ran against him, crystallising in 1988 after the requisite 12 years. The registered owner's title to the two acres was thereby extinguished and he thenceforth held the title in trust for the plaintiff.

On distribution of the estate of Wanjohi Caca Njeri, parcel 2864 comprising the two acres was registered in the defendant's name. The crystallised right of adverse possession passed as an overriding interest with the land to the defendant, who witnessed the initial entry and admitted the plaintiff's occupation through relatives from 1976 to 2015 when she entered and evicted the plaintiff's tea pickers. Her succession to the title did not defeat the plaintiff's accrued right.

The court held that whether or not the defendant was the legal representative of the late Wanjohi Caca Njeri or Wanjohi Caca Wambui was of no effect in an adverse possession claim, following Githu v Ndeete. She derived her interest from the portion encumbered by the overriding interest of adverse possession, and her 2015 entry onto the land linked the claimed two acres on the ground, identifying the suit land even without a survey report.