Emmy Kaari Kaburu v Patrick Kamundi Erasto [2018] KEELC 610 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff proved continuous, exclusive and adverse occupation of the claimed portion for over 12 years
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
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.
Whether the agreement dated 27th November 1998 was genuine and proved the manner of entry onto the suit land
The court found, on a balance of probability, that the defendant's signature as a witness to the agreement was a forgery
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.
Whether a claim of adverse possession can be based on a portion of a registered parcel
The principle in Githu v Ndete is good law, but the factual basis for invoking it was not proved
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.
Legal principles established
#- 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
#- 1.The suit is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.