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ELCPartially AllowedELC. Civil Suit No. 1687 of 2007 (Formerly HCCC No. 1328 of 2005)· [2018] KEELC 477 (KLR)

Joram Ndungu v Joseph Ngimithi Muikamba [2018] KEELC 477 (KLR)

Environment and Land Court of Kenya
6 December 2018
KBK. Bor
2,245 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons in 2005 seeking a declaration that the Defendant's title over L.R. No. Limuru/Bibirioni/723 (0.212 acres) was extinguished by adverse possession, that he be declared and registered as proprietor, and in the alternative that the Defendant be declared trustee. The Plaintiff claimed occupation since 1960, with a homestead, developments and graves of his grandparents on the land. The Defendant claimed he bought the land from Grace Nyambura in 1970, cultivated and planted trees on it, registered as proprietor in 2001, and that the Plaintiff only erected a temporary structure in August 2005; he asserted the Plaintiff owned parcel 1142. The Plaintiff testified and called a neighbour; the Chief of Bibirioni gave evidence whose account the court found contradictory; the Defendant testified, producing a 1970 sale agreement, title deed, searches, receipts and photographs. Critically, the Defendant's own pleadings in Nairobi HCCC No. 313 of 2004 (O.S) against Mukirai Thairu showed he had been shown parcel 755, sought an exchange with 723, and claimed adverse possession of 755. The court framed the single issue whether the Plaintiff was entitled to the orders sought, restated the elements of adverse possession, and found on a balance of probabilities that the Plaintiff had occupied the suit land for more than twelve years without permission. The court granted orders (a) and (c) of the Originating Summons and awarded the Plaintiff the costs of the suit. Judgment dated and delivered at Nairobi on 6 December 2018 by K. Bor, J.

Key legal issues

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01

Whether the Plaintiff proved adverse possession of L.R. No. Limuru/Bibirioni/723

Holding

The Plaintiff proved on a balance of probabilities that he occupied the suit land for more than twelve years without the Defendant's permission, entitling him to the orders sought

Reasoning

The court weighed the conflicting accounts: the Plaintiff claimed entry in 1960 with homestead, developments and graves of his grandparents, while the Defendant claimed entry in 2005. The Defendant bought the land in 1970 but was shown parcel 755, sought an exchange with parcel 723, and sued Mukirai Thairu over 755. The Defendant moved to Nyahururu in 1997 and first complained in 2005. Parcel 1142 was not near 723, undermining the Defendant's case that the Plaintiff lived elsewhere.

p. 3
02

Requirements for a claim of adverse possession

Holding

Possession must be peaceful, open, continuous, adverse to the true owner, exclusive, hostile and continued over the statutory period

Reasoning

The court stated the classic elements of adverse possession as the legal standard against which the Plaintiff's evidence of long occupation since 1960, homestead and burial of grandparents was assessed, and against the Defendant's claim that the Plaintiff only entered in 2005 with a temporary mabati structure.

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Legal principles established

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  • A claimant for adverse possession must prove peaceful, open, continuous, exclusive and hostile possession for the statutory period
  • Adverse possession is determined on a balance of probabilities

Court orders

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  1. 1.Order number (a) of the Originating Summons granted
  2. 2.Order number (c) of the Originating Summons granted
  3. 3.Plaintiff awarded the costs of the suit
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act over a claim for adverse possession of land

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joram Ndungu v Joseph Ngimithi Muikamba [2018] KEELC 477 (KLR)", Case Analysis (2018). ELC. Civil Suit No. 1687 of 2007 (Formerly HCCC No. 1328 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/477/eng@2018-12-06

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