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ELCDismissedOriginating Summons (Murang'a ELC)· [2018] KEELC 889 (KLR)

Stanley Wainaina Nduati v Georgina Wanjiru Kariuki [2018] KEELC 889 (KLR)

Environment and Land Court
8 November 2018
2,574 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Murang'a court dismissed a 49-year occupant's adverse possession claim because his presence was by permission, not hostile to the owner.

What this practically means

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Executive summary

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The Plaintiff filed an originating summons against the Defendant claiming adverse possession of 0.1 acres out of LOC 18/GACHOCHO/5388 in Gachocho Location, Murang'a County, seeking declarations that the Defendant's title was extinguished, registration of the Plaintiff as proprietor of the portion, and consequential directions to the District Land Registrar. The Plaintiff testified that the original parcel, owned by the Defendant's father Davison Mwangi Macharia, was allocated to him in 1968 after his licensed kiosk on a road reserve was removed; he built a permanent building and occupied for 49 years. The Defendant, registered as proprietor on 7/11/17 following succession, asserted the Plaintiff was a mere licensee who paid rent until asked to vacate, and that the suit was res judicata having been litigated in Succession Cause No. 174 of 1995 and its appeal. The court framed four issues: res judicata, permissibility of entry, adverse possession, and costs. It held the suit was not res judicata because the succession proceedings concerned the estate and beneficiaries, not ownership of land by adverse possession. Applying Gabriel Mbui v Mukindia Maranya and other authorities, it found the Plaintiff's own admissions showed permissive entry, and no evidence established when permission turned hostile. The claim for adverse possession was not proved on a balance of probabilities. The originating summons was dismissed with costs to the Defendant.

Key legal issues

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01

Res judicata

Holding

The suit is not res judicata because the prior succession cause and appeal concerned distribution of the deceased's estate, not a claim in adverse possession to land

Reasoning

Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue in a former suit between the same parties. The succession cause determined the assets of the estate and identified beneficiaries. The present suit asserts a right of ownership in land by adverse possession, a different cause of action and issues, so section 7 is not engaged.

p. 2
02

Permissive entry

Holding

The Plaintiff's entry and occupation of the suit land was permissive, licensed by the Defendant's father, and therefore not adverse

Reasoning

The Plaintiff himself admitted being allowed by Davison Mwangi Macharia to build and expecting to be given the land; his witness confirmed the permission. Applying Gabriel Mbui v Mukindia Maranya and Samuel Miki v Jane Njeri Richu, acts done under licence do not amount to adverse possession, and possession must be shown to have ceased to be permissive and become hostile.

p. 3
03

Proof of adverse possession

Holding

The Plaintiff failed to discharge the onus of proving adverse possession on a balance of probabilities

Reasoning

At the heart of the doctrine is hostile occupation inconsistent with the registered owner's rights amounting to dispossession for 12 years. The Plaintiff never demonstrated when permission ended and hostility began. Following Peter Njau Kairu, the evidence required to dispossess a registered owner must be stringent and straightforward, and none was led to oust the Defendant's title.

p. 3

Legal principles established

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  • Possession founded on permission or licence does not ripen into adverse possession; the claimant must show when permissive possession became hostile and adverse to the true owner's title
  • A claim of adverse possession must be proved to a stringent standard, as a proprietor should be deprived of title only in the clearest of cases

Court orders

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  1. 1.The Plaintiff's originating summons claiming adverse possession is dismissed
  2. 2.The Plaintiff to pay the costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Limitation of Actions Actprovisions on adverse possession (referenced in the pleadings)

Cases cited (8)

  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Samuel Miki v Jane Njeri Richu
    CA No. 122 of 2001
  • Mwinyi Hamisi Ali v Attorney General and Philemon Mwaisaka Wanaka
    Civil Appeal No 125 of 1997
  • Peter Njau Kairu v Stephen Ndung'u Njenga & Another
    C.A. 57 of 1997
  • Cobb v Lane
    [1952] 1 All ER 1199
  • Wallis's Cayton Bay Holiday Camp Ltd v Shell-Mex and B P Ltd
    [1974] 3 All ER 575
  • Jandu v Kirpal and another
    (1975) EA 225
  • Gatimu Kinguru v Muya Gathangi
    [1976] Kenya L R 253
Jurisdiction invoked
Environment and Land Court jurisdiction over land claims (adverse possession under the Limitation of Actions Act)

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, "Stanley Wainaina Nduati v Georgina Wanjiru Kariuki [2018] KEELC 889 (KLR)", Case Analysis (2018). Originating Summons (Murang'a ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/889/eng@2018-11-08

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