John Kamau Chege & 4 others v Julia Wanjiru Mungai & another [2018] KEELC 1086 (KLR)
The bottom line
#A Kenyan court dismissed a family's adverse possession claim over 5 acres because their occupation was with permission, not hostile.
What this practically means
#Executive summary
#Key legal issues
#Whether ELC 2 of 1998 was res judicata by virtue of the earlier HCCC No. 1535 of 1984
The suit was not res judicata because the earlier suit abated and was never determined on the merits
Section 7 of the Civil Procedure Act requires that the matter in issue in the former suit has been heard and finally decided. Justice Bosire found the earlier suit had abated and no judgment on merits could be written; Justice Aganyanya had overruled the same objection on the same ground.
Whether the plaintiffs in ELC 2 of 1998 proved adverse possession since 1958
No; their occupation was permissive, discontinuous and disputed, and no date of determination of the licence was proved
Evan Chege admitted entering with permission of the deceased. There was no proof of purchase, no date when the permission ceased, no house built on the land, burials occurred at night, and there were confrontations whenever the plaintiffs sought to occupy. Time under the Limitation of Actions Act could not run from an undetermined licence.
Whether the defendants in ELC 381 of 1998 were trespassers and whether the trees belonged to the plaintiffs
Yes; the defendants, who entered under the deceased's licence and proved no purchase, felled trees and were trespassers
The defendants could not prove purchase of the five acres, never built on the land, and in January 1998 began felling trees, prompting an injunction. The trees on the land belonged to the plaintiffs, who filed suit in 1998 to protect them.
Legal principles established
#- A suit not determined on the merits cannot found a plea of res judicata
- Where a claimant is in exclusive possession with leave and licence of the owner, possession becomes adverse only when the licence is determined
- A person in possession with permission of the owner cannot claim adverse possession until the permission is determined
- A party asserting purchase of land must prove it; the court cannot presume a sale
Court orders
#- 1.Dismissal of the plaintiffs' claim in ELC 2 of 1998 with costs to the defendants
- 2.A declaration that the defendants in ELC 381 of 1998 are trespassers on LR No. Lari/Kirenga/388
- 3.A permanent injunction restraining the defendants from trespassing onto LR No. Lari/Kirenga/388
- 4.The defendants in ELC 381 of 1998 shall pay costs of that suit to the plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (claim for adverse possession and trespass over land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kamau Chege & 4 others v Julia Wanjiru Mungai & another [2018] KEELC 1086 (KLR)", Case Analysis (2018). ELC Case No. 2 of 1998 (OS) (consolidated with ELC No. 381 of 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1086/eng@2018-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.