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ELCPartially AllowedELC Case No. 61 of 2017 (Formerly No. 97/2004 (O.S))· [2018] KEELC 849 (KLR)

Ernest M. Mugambi R’iburi v Jacob Henry Kirimi & another [2018] KEELC 849 (KLR)

Environment & Land Court
31 October 2018
ECE. C. CheronoLMLucy N. Mbugua
2,225 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court gave a family land to the man who openly farmed it for decades, because the registered owners never visited or used it.

What this practically means

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Executive summary

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The Plaintiff, by originating summons dated 25th November 2004, sought declarations that he had acquired land parcel NTIMA/IGOKI/2504 by adverse possession, that the Defendants held title in trust for him, and an order compelling transfer. He claimed his father, Robert M'Iburi M'Njogu, was the original proprietor and that although the land was secretly transferred to the Defendants on 5th April 1976, he had remained in continuous, exclusive, open and uninterrupted occupation since the land's registration in 1973. The Defendants denied his occupation, asserting the 2nd Defendant and the 1st Defendant's dependants had always been in possession, though in cross-examination DW1 (widow of the 1st Defendant) and DW2 (the 2nd Defendant) admitted they had never lived on, fenced or developed the land and did not know their neighbours or who utilized it. Applying Mbira v Gachuhi, Little dale v Liverpool College and Mweu v Ranching & Farming Co-operative Society Ltd, the court held that the Defendants never took vacant possession, failed to inspect the land or establish who was in occupation, and their conduct was inconsistent with ownership. The Plaintiff's uncontroverted occupation for over 12 years proved adverse possession on a balance of probabilities. Judgment was entered ordering the Plaintiff's registration as proprietor, with each party bearing their own costs.

Key legal issues

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01

Whether the Plaintiff proved adverse possession of NTIMA/IGOKI/2504

Holding

Yes - the Plaintiff proved exclusive, open, continuous and uninterrupted occupation for more than 12 years and was entitled to be registered as proprietor

Reasoning

The court found the Plaintiff's occupation since registration of the land in 1973 was uncontroverted. The Defendants, in cross-examination, admitted they had never lived on, fenced, or developed the land and did not know their neighbours, which the court held was inconsistent with the owner's enjoyment of the land. The Defendants failed to exercise due diligence when purchasing by inspecting the boundaries and establishing who was in occupation. The Plaintiff produced the title deed and green card confirming registration in the Defendants' joint names, and no evidence controverted his averments.

p. 3
02

Whether the Defendants acquired vacant possession and exercised owner-like control after the 1976 transfer

Holding

No - there was no indication the Defendants were given vacant possession; their ignorance of the property's state was inconsistent with ownership

Reasoning

DW1 (widow of the 1st Defendant) said she was not physically occupying the land and had instructed the 2nd Defendant to care for it; DW2 admitted he had never lived on the land, fenced it or built on it, and did not know who utilized it. The court concluded they had never set foot on the property after acquiring it and had no clue what was happening on their own property. Such actions were inconsistent with the owner's enjoyment of the land for its intended purpose, supporting the discontinuation of possession by the registered owners.

p. 3

Legal principles established

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  • A claimant seeking title by adverse possession must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use for the statutory period without interruption
  • Adverse possession is a fact to be observed upon the land, not in the title; a buyer who fails to ascertain who is in occupation risks his title
  • A known owner loses his right to land by being dispossessed of it or by discontinuing his possession of it

Court orders

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  1. 1.That the Plaintiff be and is hereby registered as the proprietor of land title No. NTIMA/IGOKI/2504 by Adverse Possession
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 37 and 38
  • Cap. 300 (former government land legislation)null

Cases cited (3)

  • Mbira –Vs- Gachuhi
    (2002) EALR 137
  • Little dale –Vs- Liverpool College
    (1990) 1 Ch. 19, 21
  • Mweu –Vs- Ranching & Farming Co-operative Society Ltd
    (1985) KLR 430
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title to land; claim brought by originating summons under 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, "Ernest M. Mugambi R’iburi v Jacob Henry Kirimi & another [2018] KEELC 849 (KLR)", Case Analysis (2018). ELC Case No. 61 of 2017 (Formerly No. 97/2004 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/849/eng@2018-10-31

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