Laurency Njeri Gatimu v Samuel Muiruri Kamwaro [2017] KEELC 1670 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether entry under a sale agreement can found adverse possession
Yes - lawful entry under contract can mature into adverse possession where transfer is not effected and possession continues
The court found the Applicant entered lawfully under a sale agreement, paid the full price and was put into possession in 2003. Where the registered owner (or his representatives) fails to effect transfer, the purchaser's possession becomes adverse to the title. The court held that title became adverse to the legal representatives of the deceased owner and his successors once the agreed transfer date passed without transfer.
The date from which the limitation period ran
Time ran from 15/12/2004, the date the agreed transfer ought to have been effected, not from the date of full payment
Although Public Trustee v Wanduru would start time from full payment (15/11/2003), the agreement itself provided that transfer would be effected 14 months later, on 15/12/2004. The court held time began to run on that date, so twelve years expired on 15/12/2016, before the suit was filed on 7/2/2017.
Whether the Applicant also acquired overriding interests
Yes - as a purchaser in possession she holds overriding interests protected under section 28(h) of the Land Registration Act
Relying on Mwangi v Mwangi and Public Trustee v Wanduru, the court found the person in possession holds equitable rights binding on the land, and that the purchaser's overriding interest under the repealed Registered Land Act Cap 300 is now mirrored in section 28(h) of the Land Registration Act No. 3 of 2012.
Legal principles established
#- A purchaser in possession who has paid the full purchase price may acquire title by adverse possession, time running from the date possession was taken or the date transfer was due
- Adverse possession requires possession that is nec vi, nec clam, nec precario, continuous and known to the owner
Court orders
#- 1.That the applicant has by way of adverse possession acquired land title No. MAKUYU/KIMORORI/BLOCK 3/3706 and the same be registered in the names of LAURENCY NJERI GATIMU
- 2.That the Land Registrar Murang'a be ordered to transfer the said land comprised of land title No. MAKUYU/KIMORORI/BLOCK 3/3706 to the applicant
- 3.That the Deputy Registrar of this Court do sign all the requisite documents necessary to facilitate transfer of suit land to the applicant
- 4.That the costs of this suit shall be met by the respondent
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - implied by the court's jurisdiction over land; the judgment does not expressly cite the provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Laurency Njeri Gatimu v Samuel Muiruri Kamwaro [2017] KEELC 1670 (KLR)", Case Analysis (2017). E.L.C Case No. 229 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1670/eng@2017-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.