Public Trustee (suing as the administrator of he estate of Gideon Mganga Mwandembe) v Pius M. Katambo [2017] KEELC 2852 (KLR)

The defendant argued that an administrator has no role after confirmation of the grant, so beneficiaries should have been joined. The court noted that when the suit was filed in 2011 the grant had not been confirmed; confirmation occurred only in 2013 during the pendency of the suit. No legal authority was cited for the defendant's position, and distribution had not taken place, so beneficiaries taking over would apply only after distribution. The court found no clear basis for the objection.

Section 7 of Cap 22 bars an action to recover land after 12 years from when the right accrued. Before registration, the land could be said to belong to the government; the deceased obtained rights of proprietorship upon registration in 2002. The suit filed on 20th July 2011 was within 12 years, so the limitation defence failed.

The defendant was aware the land was government land from 1975 and by 1992; no adverse possession arises against the government under section 41(1) of Cap 22. Both parties held competing allotments from the commissioner of lands until the deceased obtained title in 2002. From 2002 to 2011 is only nine years, marked by complaints lodged by the defendant, including the 2005 proceedings before the Voi Municipal Council. Section 38(1) presupposes registration, which occurred in 2002.

The plaintiff relied on the rights of a registered proprietor under section 23(1) of the (repealed) Registration of Titles Act, now reflected in sections 24 and 25 of the Land Registration Act. The deceased followed due process; the defendant never pleaded or submitted that the title was fraudulently acquired. A search certificate showed the plot registered in the deceased's name with no encumbrance, so possession with all appurtenant rights was just and fair.