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ELCDismissedOriginating Summons (unspecified number), Meru dated 16th August 2013· [2018] KEELC 515 (KLR)

Ashford Kaugi Mbiuki & 4 others v Julius Mungathia & another [2018] KEELC 515 (KLR)

Environment and Land Court
19 December 2018
PNP. M. Njoroge
6,073 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~24 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a family's claim to land by adverse possession because their evidence was contradictory and 12 years were never proved.

What this practically means

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Executive summary

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The five plaintiffs, wife and children of one George Mbiuki, brought an Originating Summons under Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules claiming that they had acquired land parcel Kiare/E. Magutuni/2048 by adverse possession. They asserted their father bought the land from the 1st defendant in 1992 and had occupied and cultivated it openly, continuously and without interruption for over 12 years, seeking cancellation of the 2nd defendant's title and registration in their names. The defendants denied the claim: the 1st defendant testified the land was ancestral land given to him as his share in 1996 upon sub-division, that he sold it to the 2nd defendant by agreement dated 10th December 2010 for Kshs.700,000 with Land Control Board consent, and that the plaintiffs violently prevented the 2nd defendant from taking possession. The plaintiffs had earlier sued over the same land in Chuka Civil Case No. 16 of 2011 and withdrawn it with costs of Kshs.35,725. The court framed two issues: whether adverse possession was proved on a balance of probabilities, and costs. It held the claim improbable because the 1st defendant could not have sold land in 1992 before becoming registered owner in 1996; the plaintiffs' evidence was contradictory (PW2 claimed five houses on the land while PW1 and PW3 said there were no structures); any occupation was with the owner's consent and so could not count; the prior Chuka suit interrupted time; and barely three years had elapsed since the 2nd defendant became registered owner. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiffs proved adverse possession for the requisite 12 years

Holding

The claim failed: the alleged 1992 purchase was impossible since the 1st defendant was only registered as owner on 29th October 1996; plaintiffs' evidence on occupation was internally contradictory; any occupation was with consent; and the prior Chuka suit interrupted time

Reasoning

The court found the claim improbable because the 1st defendant could not have sold land four years before becoming its proprietor. PW2's testimony of five houses contradicted PW1's and PW3's evidence that there were no structures, undermining the veracity of the plaintiffs' case. The defendants' evidence was consistent and uncontroverted. The prior Chuka Civil Case No. 16 of 2011 over the same subject matter, withdrawn with costs, interrupted any limitation period, and the present suit was filed only about three years after the 2nd defendant became registered owner.

p. 8
02

Who should pay costs

Holding

Costs awarded to the defendants as the suit was dismissed

Reasoning

Having found the plaintiffs' claim unproved and the suit dismissed, the ordinary rule that costs follow the event applied, so costs were awarded to the defendants.

p. 9

Legal principles established

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  • A claimant for adverse possession must proffer cogent and unimpeachable evidence because the declaration deprives the registered owner of property
  • Mere longevity of occupation is insufficient where occupation was with the owner's consent; consented occupation cannot count toward the limitation period
  • Assertion of the owner's right, such as filing suit, interrupts the running of time for adverse possession
  • Adverse possession cannot accrue against a registered owner where the claim is filed before 12 years have elapsed since registration

Court orders

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  1. 1.This suit is hereby dismissed.
  2. 2.Costs shall follow the event and are awarded to the defendants.

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 38(1)
  • Limitation of Actions Act (Cap 22)Section 7
  • Limitation of Actions Act (Cap 22)Section 13(1)-(3)
  • Limitation of Actions Act (Cap 22)Sections 37 and 38
  • Civil Procedure RulesOrder 37

Cases cited (2)

  • Grace Kamene M'Becere v Joyce Rigiri W/O David Mbogori & another
    Court of Appeal No. 73 of 2015 at Nyeri
  • Daniel Kimani Ruchine & Others v Swift, Rutherford Co. Ltd & Another
    [1977] eKLR, Nairobi High Court Civil Case No. 1401 of 1971
Jurisdiction invoked
Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules

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, "Ashford Kaugi Mbiuki & 4 others v Julius Mungathia & another [2018] KEELC 515 (KLR)", Case Analysis (2018). Originating Summons (unspecified number), Meru dated 16th August 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/515/eng@2018-12-19

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