Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedOriginating Summons dated 17th August 2012· [2018] KEELC 189 (KLR)

Martha Njeri Karanja v Solomon Mukundi Gichinga; Equity Bank Limited (Interested Party) [2018] KEELC 189 (KLR)

Environment and Land Court
20 December 2018
3,690 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This was an Originating Summons by Martha Njeri Karanja seeking to be registered as proprietor of land parcel Nguirubi/Ndiuni/1401, Kiambu, by adverse possession against the registered owner, Solomon Mukundi Gichinga. An earlier judgment by Mutungi J. in the applicant's favour was, by consent of 30th May 2017, set aside, and the matter proceeded to a fresh hearing. The respondent, despite being granted leave to file a replying affidavit, neither filed one on time nor attended the hearing, so the suit proceeded undefended. The interested party, Equity Bank Limited, relied on the affidavit of John Njenga, having advanced Kshs. 500,000/- to Margaret Wangui Mwaura in January 2013 secured by a guarantee of the respondent and a first legal charge over the suit property registered on 1st February 2013, during the pendency of the suit. The applicant testified that she entered the land in 1992, built a home, cultivated it and buried her late husband there. Applying sections 7, 17, 37 and 38 of the Limitation of Actions Act and the classic requirements of adverse possession, the court found the applicant had occupied the land openly and uninterrupted for 20 years by the time of suit, extinguishing the respondent's title. The court held that the respondent held the title in trust for the applicant and had no interest over which a valid charge could be created; the charge was also caught by the doctrine of lis pendens. The court declared the applicant the owner by adverse possession, ordered her registration in place of the respondent, cancelled the Equity Bank charge forthwith, and awarded costs to the applicant against the respondent.

Key legal issues

#
01

Whether the applicant acquired the suit property by adverse possession

Holding

Yes - the applicant occupied the land openly, continuously and uninterrupted from 1992, exceeding 12 years, so the respondent's title was extinguished

Reasoning

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.

p. 3
02

Whether the charge registered in favour of the interested party during the pendency of the suit affects the applicant's title

Holding

No - the charge is subject to the applicant's adverse possession claim and must be cancelled

Reasoning

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.

p. 3

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. 1.Declaration that the applicant, Martha Njeri Karanja has acquired all that parcel of land known as Nguirubi/Ndiuni/1401 by adverse possession
  2. 2.Order that the applicant be registered as the proprietor of Nguirubi/Ndiuni/1401 in place of the respondent, Solomon Mukundi Gichinga
  3. 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. 4.Costs of the suit awarded to the applicant as against the respondent

Authorities

#

Legislation

  • Land Registration Actsection 25
  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 17
  • Limitation of Actions Actsection 38
  • Limitation of Actions Actsection 37
  • Registered Land Act (Cap 300)section 30(f)
  • Transfer of Property Actsection 52
  • Registration of Titles Actsection 23

Cases cited (9)

  • Salim v Boyd and Another
    (1971) E.A 550
  • Kimani Ruchine & Another v Swift, Rutherford Co. Ltd. & another
    (1977) KLR 10
  • Samuel Kihamba v Mary Mbaisi
    KSM CA No. 27 of 2013
  • Eliva Nyongesa Lusenaka & Anor v Nathan Wekesa Omacha
    Kisumu Civil Appeal No. 134 of 1993
  • Micheal Oringo Alusi & 2 others v. Jobson Salano Mulanda
    [2016] eKLR
  • Benson Mukuwa Wachira v Assumption Sisters of Nairobi Registered Trustees
    (2016) eKLR
  • Kipkoech Arap Langat & Another v Kipngeno Arap Laboso
    Kericho HCCC No.124 of 2004 (O.S.)
  • Mawji v US International University & Another
    [1976] KLR 185
  • Mweu v Kiu Ranching & Farming Co-operative Society Ltd.
    (1985) KLR 430
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.