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ELCPartially AllowedELC No. 121 of 2009 (O.S)· [2018] KEELC 994 (KLR)

Rashid Said & 6 others v Stephen Kimonye Ibutu [2018] KEELC 994 (KLR)

Environment and Land Court
31 October 2018
ECE. C. CheronoLMLucy N. Mbugua
2,174 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Meru court ruled that people who lived on and developed land openly for decades own it, even though someone else held the title.

What this practically means

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Executive summary

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Seven Plaintiffs brought an originating summons under Section 38 of the Limitation of Actions Act (Cap. 22) seeking a declaration that they were entitled to be registered as proprietors of LR No. NKUENE/MITUNGUU/180 by adverse possession, together with an order of inhibition against alienation by the Defendant. The Plaintiffs, children and relations of the original proprietor Bilali, deponed that they had each occupied distinct portions of the suit land since birth (from about 1965), with substantial permanent developments, while the Defendant had never occupied it. The Defendant claimed he purchased 9 acres in 1976 and the remaining 8.1 acres in 1977 from Said Bilali under written sale agreements, and pointed to prior litigation including SRMCC No. 68/87 seeking eviction and Judicial Review No. 203/2004 quashing LDT proceedings. Applying the ingredients of adverse possession as set out in Munyaka Kuna Company Ltd v Bernado Vicezo De Masi, the court found the Plaintiffs had factual possession and animus possidendi, had used the land openly nec vi nec clam nec precario for over twelve years, that the registered owner had knowledge of their possession, and that their possession was continuous. The Defendant's failure to aver he ever took possession after purchase, and the absence of an eviction order in his 1987 suit, meant his litigation did not break the Plaintiffs' possession. The suit was allowed in terms of the originating summons, with each party bearing their own costs.

Key legal issues

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01

Whether the Plaintiffs proved adverse possession of LR No. NKUENE/MITUNGUU/180

Holding

The Plaintiffs proved all ingredients of adverse possession and were entitled to be registered as proprietors

Reasoning

The court found that the Plaintiffs had factual possession and the intention to possess, having occupied and developed the land openly since 1965 without force, secrecy or persuasion for over twelve years. The Defendant never took possession after his 1976 and 1977 purchases and never explained how he was displaced. The 1987 eviction suit did not break their possession since no eviction was ordered. The registered owner had constructive knowledge of their possession.

p. 3
02

Whether the Defendant's suit SPMCC No. 68/87 interrupted the Plaintiffs' possession

Holding

The filing of the 1987 eviction suit did not interrupt the Plaintiffs' continuous occupation

Reasoning

The Defendant argued that his 1987 suit seeking eviction demonstrated his dispute of the Plaintiffs' occupation. The court held that the Plaintiffs had been living on the land before 1987, and since the court in that suit did not order their eviction, their occupation and possession continued uninterrupted for purposes of the limitation period.

p. 3

Legal principles established

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  • Ingredients of adverse possession: factual possession and animus possidendi; open, peaceful and continuous possession for twelve years nec vi nec clam nec precario; owner's knowledge; unbroken possession
  • The mere filing of a suit for eviction does not interrupt possession where the court does not order eviction

Court orders

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  1. 1.Declaration that the Plaintiffs are entitled to be registered as proprietors of LR No. NKUENE/MITUNGUU/180 by adverse possession under Section 38 of the Limitation of Actions Act
  2. 2.Order that the Plaintiffs be registered as owners of land parcel No. NKUENE/MITUNGUU/180
  3. 3.Inhibition prohibiting the Defendant from alienating or disposing of the suit property until the suit is heard and determined, granted in terms of the originating summons
  4. 4.Each party to bear his own costs of the suit

Authorities

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Legislation

  • Limitation of Actions Act (Cap. 22), Laws of KenyaSection 38

Cases cited (3)

  • Munyaka Kuna Company Ltd –Vs- Bernado Vicezo De Masi (The Administrator of the Estate of Demico De Masi (Deceased)
    (2018) eKLR
  • Chevron (K) Ltd –Vs- Charo was Shulu
    (2016) eKLR
  • Benjamin Kamau Murima & Another –Vs- Gladys Njeri
    CA No. 213 of 1996
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap. 22), Laws of Kenya - originating summons for adverse possession

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rashid Said & 6 others v Stephen Kimonye Ibutu [2018] KEELC 994 (KLR)", Case Analysis (2018). ELC No. 121 of 2009 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/994/eng@2018-10-31

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