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ELCDismissedOriginating Summons dated 10th April 2017 (number not stated in judgment)· [2018] KEELC 610 (KLR)

Emmy Kaari Kaburu v Patrick Kamundi Erasto [2018] KEELC 610 (KLR)

Environment and Land Court of Kenya
27 November 2018
15,223 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~61 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a widow's claim to land by adverse possession because she lived there with the owner's consent and left before completing 12 years.

What this practically means

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Executive summary

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The plaintiff, widow and administratrix ad litem of the estate of Donald Mugo Erasto, brought an originating summons seeking a declaration that she was entitled to ownership of a portion measuring 12 feet by 150 feet of the defendant's land parcel Muthambi/Igamurathi/791 by way of adverse possession. Her case was that a 1998 sale agreement among three brothers, including the defendant, obliged the defendant to cede 12 feet by 150 feet; that she and her husband occupied that portion from 1998; and that her occupation for over 12 years extinguished the defendant's title. The defendant denied signing the agreement, describing it as a forgery, and maintained that the plaintiff left the land in 2003 when her husband became mentally ill and returned only for his burial in 2015, when she began encroaching. The court found PW1 and PW2 evasive and inconsistent, and the defendant's witnesses credible. It held on a balance of probability that the defendant's signature on the agreement was a forgery, and that the plaintiff and her husband had occupied the land with the defendant's consent - occupation which, however long, cannot ground adverse possession. The court held that adverse possession must be proved by evidence, and the plaintiff failed to discharge that burden. The suit was dismissed, and the court, exercising judicial discretion because the parties are close relatives, refused to award costs to promote family harmony.

Key legal issues

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01

Whether the plaintiff proved continuous, exclusive and adverse occupation of the claimed portion for over 12 years

Holding

She did not; the court found she left the land around 2003 and only returned for her husband's burial in 2015, and that her earlier occupation was with the defendant's consent

Reasoning

The court found the plaintiff and PW2 evasive and inconsistent, and preferred the defendant's evidence that the plaintiff left in 2003 upon her husband's mental illness and returned in 2015. It further found that the couple had lived on the land with the defendant's consent, which defeats adverse possession. The existence of the 1998 sale agreement, which could have founded possession, was not proved because the defendant disowned the signature and evidence of forgery was accepted on a balance of probability.

p. 16
02

Whether the agreement dated 27th November 1998 was genuine and proved the manner of entry onto the suit land

Holding

The court found, on a balance of probability, that the defendant's signature as a witness to the agreement was a forgery

Reasoning

The agreement did not indicate the defendant was selling any land; he appeared only as one of the witnesses. It also referred to parcel No. 789, not the defendant's parcel 791. The defendant obtained title on 10th November 1998 before the agreement. The defendant denied signing and was not impeached by calling the advocate; the court accepted forgery on the balance of probability.

p. 15
03

Whether a claim of adverse possession can be based on a portion of a registered parcel

Holding

The principle in Githu v Ndete is good law, but the factual basis for invoking it was not proved

Reasoning

The court accepted that a title by adverse possession can be acquired to part of a parcel and that change of ownership does not interrupt adverse possession, but held that these principles 'need to be proved' on the evidence, which the plaintiff failed to do.

p. 15

Legal principles established

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  • Adverse possession must be proved by evidence; where there is proof the claim succeeds, where there is none it fails
  • Occupation of land with the consent of the registered owner, however long, cannot found a claim of adverse possession

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear own costs - the court refused to award costs to promote family harmony
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under a claim for adverse possession (originating summons under Order 37 Civil Procedure Rules; Limitation of Actions Act Cap 22)

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, "Emmy Kaari Kaburu v Patrick Kamundi Erasto [2018] KEELC 610 (KLR)", Case Analysis (2018). Originating Summons dated 10th April 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/610/eng@2018-11-27

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