Martha Njeri Karanja v Solomon Mukundi Gichinga; Equity Bank Limited (Interested Party) [2018] KEELC 189 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicant acquired the suit property by adverse possession
Yes - the applicant occupied the land openly, continuously and uninterrupted from 1992, exceeding 12 years, so the respondent's title was extinguished
The applicant entered the suit property in 1992 with her late husband, built a home, cultivated it and buried her husband there. Her evidence on entry and developments was uncontroverted as the respondent neither filed a replying affidavit on time nor appeared to testify. By 2012 when she sued, she had occupied for 20 years with no action to recover the land, satisfying the nec vi, nec clam, nec precario requirements under sections 7 and 17 of the Limitation of Actions Act.
Whether the charge registered in favour of the interested party during the pendency of the suit affects the applicant's title
No - the charge is subject to the applicant's adverse possession claim and must be cancelled
By the time the respondent offered the land as security in 2013, his title had already been extinguished and he held it in trust for the applicant under section 37 of the Limitation of Actions Act, so no enforceable title existed over which a charge could be created. Charging land occupied by a trespasser in adverse possession does not interrupt the running of time, and adverse possession is an overriding interest. The charge was also void under the doctrine of lis pendens.
Legal principles established
#- A charge created over land by a registered proprietor whose title has been extinguished by adverse possession cannot stand and gives way to the adverse possessor's title
- Dispositions made during the pendency of a suit are subservient to the rights of the litigating parties under the doctrine of lis pendens, whether or not the transferee had notice
- Adverse possession is an overriding interest that need not be registered against the title
Court orders
#- 1.Declaration that the applicant, Martha Njeri Karanja has acquired all that parcel of land known as Nguirubi/Ndiuni/1401 by adverse possession
- 2.Order that the applicant be registered as the proprietor of Nguirubi/Ndiuni/1401 in place of the respondent, Solomon Mukundi Gichinga
- 3.Order that the charge registered against the title of Nguirubi/Ndiuni/1401 on 1st February 2013 in favour of Equity Bank Limited be cancelled forthwith
- 4.Costs of the suit awarded to the applicant as against the respondent
- Jurisdiction invoked
- Original jurisdiction under section 38 of the Limitation of Actions Act (Cap 22) for order of registration based on adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martha Njeri Karanja v Solomon Mukundi Gichinga; Equity Bank Limited (Interested Party) [2018] KEELC 189 (KLR)", Case Analysis (2018). Originating Summons dated 17th August 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/189/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.