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ELCDismissedELC. CIVIL SUIT NO. 560 OF 2014 (O.S)· [2018] KEELC 250 (KLR)

Patrick Karige Munge v Raphael Arc Michael Munge [2018] KEELC 250 (KLR)

Environment and Land Court
6 December 2018
KBK. BOR
1,666 words in judgment
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The bottom line

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A son suing his father for land ownership through adverse possession lost because he couldn't prove he lived on the property continuously for twelve years.

What this practically means

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Executive summary

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The Plaintiff, son of the Defendant, brought an originating summons under Section 38 of the Limitations of Actions Act claiming that he had openly, peacefully and continuously occupied L.R. Nos. 8107/2,3,4,5,8 and 9 since 1999 (or 1992) and was thus entitled to have his father's titles extinguished and to be registered as proprietor. He alleged he had invested over Kshs. 10 million refurbishing the land, paid rates and run businesses on it. The Defendant, the registered proprietor, denied the claim: he left for the USA in 1992 leaving his sons on the land, evicted them in 1993 over drug use, found the land unoccupied on visits in 2001 and 2004, and asserted the Plaintiff was permitted to occupy on his mother's request in 2000, occupying only the renovated servant's quarters with shanties and a communication mast. Both parties testified, with two witnesses corroborating the Plaintiff's occupation from 2000. The court found the Plaintiff's occupation was permissive at inception, that he had moved out before the house burnt down in 1998, and that he gave no evidence of when he returned, so continuous occupation for twelve years was not proved. The claimed expenditure was also unproved. The suit was dismissed with costs to the Defendant, the judgment being delivered at Nairobi on 6 December 2018 by K. Bor, Judge.

Key legal issues

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01

Whether the Plaintiff proved continuous, open and peaceful occupation of the suit land from 1992 to date so as to claim adverse possession

Holding

The claim failed; the Plaintiff did not prove continuous occupation for twelve years. He was permitted to stay by his father when the latter left for the USA in 1992, moved out before 1998 when the house burnt down, and gave no evidence of when he returned.

Reasoning

The court found on the Plaintiff's own evidence that he resided on the land until 1992, moved to his mother's house, and confirmed his father visited the land in 2001 and 2004 when the Plaintiff was absent. The occupation permissive at its inception, interrupted before 1998, and of uncertain resumption thereafter, could not ground adverse possession. The claimed expenditure on rates, landscaping and fencing was not proved at the hearing.

p. 2

Legal principles established

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  • A claimant seeking adverse possession must prove continuous occupation of the land for the statutory limitation period of twelve years

Court orders

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  1. 1.The Plaintiff's Originating Summons seeking adverse possession of L.R. Nos. 8107/2,3,4,5,8 and 9 is dismissed
  2. 2.Costs of the suit awarded to the Defendant

Authorities

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Legislation

  • Limitations of Actions ActSection 38
Jurisdiction invoked
Section 38 of the Limitations of Actions Act (Cap. 22) and the court's jurisdiction as the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Patrick Karige Munge v Raphael Arc Michael Munge [2018] KEELC 250 (KLR)", Case Analysis (2018). ELC. CIVIL SUIT NO. 560 OF 2014 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/250/eng@2018-12-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.