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ELCAllowedELC Case No. 192 of 2014· [2018] KEELC 742 (KLR)

Thomas Shiundu Muakalama v Mwanzo Obaye [2018] KEELC 742 (KLR)

Environment and Land Court
21 November 2018
1,118 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, Thomas Shiundu Muakalama, brought an originating summons in the Environment and Land Court at Kakamega seeking to be registered as proprietor of land parcel No. Kakamega/Malava/443 (2.6 Ha) by adverse possession under sections 7, 17 and 38 of the Limitation of Actions Act (Cap 22). He testified that his father bought the suit land and that he was born on and has lived on it since 1975, building three houses and a toilet, and that the defendant - his uncle - was registered as proprietor only to hold the land in trust. He produced the title deed and chief's letters confirming the defendant never lived on or used the land. The defendant testified that the plaintiff lives on the land but has refused to vacate, asserting his own allocation of the land. Applying the principles in Wambugu v Njuguna as cited by Sergon J in Gerald Muriithi v Wamugunda Muriuki, and the nec vi, nec clam, nec precario standard from Kimani Ruchire v Swift Rutherfords as approved in Francis Gicharu Kariri v Peter Njoroge Mairu, the court found that the plaintiff had been in open, peaceful and uninterrupted possession for a period well in excess of twelve years. It was undisputed that the defendant never resided on or used the land. The court declared the plaintiff owner of the parcel by adverse possession, declared the defendant to hold title in trust for the plaintiff, ordered transfer of the title, provided for the Deputy Registrar to execute the transfer documents in default, and awarded costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff proved adverse possession of the suit land

Holding

The plaintiff, in open, peaceful and uninterrupted possession since 1975 (in excess of 12 years), proved his case on a balance of probabilities and was declared owner by adverse possession.

Reasoning

The court applied the principles in Wambugu v Njuguna as set out by Sergon J in Gerald Muriithi v Wamugunda Muriuki, requiring dispossession or discontinuance of the owner's possession for the statutory period. It also applied the Kimani Ruchire standard of possession nec vi, nec clam, nec precario, requiring continuity and the owner's knowledge. It was undisputed that the land was registered in the defendant's name, that the defendant never resided on or used it, and that the plaintiff had lived on it since 1975 and built a home there.

p. 2
02

Whether the defendant held the land in trust for the plaintiff

Holding

The court declared that the defendant held title in trust for the plaintiff and ordered transfer of the title, with the Deputy Registrar to execute documents in default.

Reasoning

The plaintiff testified that his father bought the suit land and the defendant, his uncle, was to hold it in trust. Letters from the chief (PEx 3 and 2) confirmed that the defendant had never lived on the land and was to hold it in trust for the plaintiff. On the evidence, the court found the trust established and coupled it with the adverse possession declaration, ordering transfer of title to the plaintiff.

p. 2

Legal principles established

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  • To acquire title by the statute of limitations, the owner must have lost his right to the land either by dispossession or discontinuance of possession; dispossession requires acts inconsistent with the owner's enjoyment of the soil.
  • The claimant must prove possession as of right: nec vi, nec clam, nec precario.
  • Where a claimant pleads an agreement and alternatively adverse possession, possession becomes adverse after payment of the last installment of the purchase price, with 12 years' occupation thereafter.

Court orders

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  1. 1.A declaration that the plaintiff is the owner of the whole of land parcel No. Kakamega/Malava/443 by virtue of adverse possession, and the respondent is ordered to transfer title to the plaintiff
  2. 2.A declaration that the respondent holds title to the suit land in trust for the applicant, with transfer ordered and, in default, the Deputy Registrar to execute all documents necessary to effect the transfer
  3. 3.The respondent to pay the costs of the originating summons to the applicant

Authorities

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Legislation

  • Limitation of Actions Act (Chapter 22, Laws of Kenya)sections 7, 17 and 38

Cases cited (4)

  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR 172
  • Francis Gicharu Kariri v Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire v Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
Jurisdiction invoked
Environment and Land Court jurisdiction over land claims, invoking sections 7, 17 and 38 of the 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, "Thomas Shiundu Muakalama v Mwanzo Obaye [2018] KEELC 742 (KLR)", Case Analysis (2018). ELC Case No. 192 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/742/eng@2018-11-21

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