Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case No. 70 of 2006 (O.S)· [2018] KEELC 1002 (KLR)

Pauline Mpaka v Mark Mungiria Muguna [2018] KEELC 1002 (KLR)

Environment and Land Court
31 October 2018
1,940 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a widow's 40-year land ownership claim because her occupation was with permission, which cannot become adverse possession.

What this practically means

#

Executive summary

#
The Plaintiff, a widow, brought an originating summons under Order XXXVI Rules 30, 7 and 12 CPR and Sections 3 and 3A of the Civil Procedure Act seeking a declaration of proprietorship of land parcel NTIMA/NTAKIRA/3349 by adverse possession. She claimed the parcel, a sub-division of ancestral land NTIMA/NTAKIRA/1808, had been held in trust by Marete M'Iringo for the family including her late husband Gilbert Karagania, and that she had occupied the land since her marriage in 1978. The Defendant, the registered proprietor who said he bought the land on 30/11/99, countered that the Plaintiff was a serial squatter who had been evicted from neighbouring parcels (3350, 3348 and 3355) in earlier cases (CMCC 321/92, CMCC 744/99 and Misc. 73A/03) and only invaded his land in 2003. He pleaded innocent purchase for value. The court traced the ingredients of adverse possession under Sections 7, 9, 13, 37 and 38 of the Limitation of Actions Act, adopting the four ingredients stated in Munyaka Kuna Company Limited v Bernado Vicezo De Masi. It found the Plaintiff entered and occupied the land as a licensee with the permission of her father-in-law, the then registered owner, and that her own submissions admitted her possession was with permission. That admission disqualifies a claim of adverse possession. The claim was dismissed, with each party bearing their own costs to preserve family co-existence.

Key legal issues

#
01

Whether the Plaintiff's occupation of the suit land was adverse or permissive

Holding

The occupation was permissive - the Plaintiff entered in 1978 pursuant to marriage with the permission of her father-in-law, the then registered owner, and remained a licensee; her own submissions confirmed possession was with permission

Reasoning

The court found the suit property was a sub-division of ancestral family land held in trust, and that the Plaintiff's entry and occupation were sanctioned by the family and clan. Her own written submissions admitted her possession was with the permission of the then registered owner, which the court held outrightly disqualifies a claim of adverse possession. A licensee's possession is not in denial of the true owner's title and cannot ripen into ownership under Sections 7, 9, 13, 37 and 38 of the Limitation of Actions Act.

p. 3
02

Whether the Plaintiff proved the statutory period of adverse possession

Holding

The Plaintiff failed to demonstrate use of the land without persuasion or consent for the prescribed twelve-year period, so the ingredients of adverse possession were not met

Reasoning

The court set out the four ingredients of adverse possession as endorsed in Munyaka Kuna Company Limited v Bernado Vicezo De Masi and tested the evidence against them. From the analysis of the evidence, the Plaintiff had not shown she occupied without consent; she lodged a caution in 2002 citing licensee interest, confirming the permissive nature of her occupation. The claim therefore did not meet the ingredients and was dismissed.

p. 3

Legal principles established

#
  • A person in occupation of land with the permission or consent of the owner cannot claim title by adverse possession; possession must be without force, without secrecy and without persuasion (nec vi nec clam nec precario) for twelve years
  • To establish adverse possession a claimant must prove factual possession and animus possidendi, use of the land nec vi nec clam nec precario for 12 years, the registered owner's knowledge of the possession, and continuous unbroken possession

Court orders

#
  1. 1.The Plaintiff's originating summons claiming adverse possession is dismissed for lacking merit
  2. 2.Each party to bear his own costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder XXXVI Rules 30, 7 and 12
  • Civil Procedure ActSections 3 and 3A
  • Registered Land Act (Cap. 300)Section 30
  • Limitation of Actions ActSections 7, 9, 13, 37 and 38

Cases cited (4)

  • Munyaka Kuna Company Limited v Bernado Vicezo Musi (The Administrator of the Estate of Domenico De Masi (deceased)
    (2018) eKLR
  • Chevron (K) Ltd v Harrison Charo Was Shutu
    (2016) eKLR
  • Wilson Kazungu Kalana & 101 Others v Salim Abdalla Bashshwein & Another
    (2015) eKLR
  • Gulam Miriam Noordin v Julius Charo Karisa
    (2015) eKLR
Jurisdiction invoked
Originating summons under Order XXXVI Rules 30, 7 and 12 CPR and Sections 3 and 3A of the Civil Procedure Act, read with Sections 7, 9, 13, 37 and 38 of the Limitation of Actions Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Pauline Mpaka v Mark Mungiria Muguna [2018] KEELC 1002 (KLR)", Case Analysis (2018). ELC Case No. 70 of 2006 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1002/eng@2018-10-31

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