Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherEmbu ELC Case No. 48 of 2017 (Originating Summons dated 11th April 2017, amended 27th March 2018)· [2018] KEELC 1180 (KLR)

Efureith Irima Mbogo v Ibara Mwaniki & 6 others [2018] KEELC 1180 (KLR)

Environment and Land Court of Kenya
25 October 2018
2,437 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Embu Land Court dismissed all objections to an adverse possession claim, confirming such suits belong in superior courts and aren't blocked by registered title.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Embu (Y.M. Angima, J) determines two notices of preliminary objection dated 27th April 2018 and 17th May 2018 raised by the 3rd to 7th Defendants against an amended originating summons in which the Plaintiff claims declarations of adverse possession over parcels Mbeere/Kirima/2231, 5046 and 5047, plus an alternative declaration of trust, under sections 7, 37 and 38 of the Limitation of Actions Act. The Defendants argued res judicata and sub judice (sections 6 and 8 of the Civil Procedure Act), wrong forum (sections 11 and 12), that the suit was a nullity, time-barred under section 7 of the Limitation of Actions Act, and contrary to the indefeasibility provisions of the Land Registration Act. The court applied the Mukisa Biscuits test and held the res judicata objection required factual investigation, noting five cited proceedings were never exhibited and four succession causes were introduced for the first time in submissions without affidavit evidence. The section 8 objection failed as no preclusion was demonstrated. On forum, the court held only a superior court is competent to try an adverse possession summons under section 38 of the Limitation of Actions Act, so filing at Embu ELC was proper. The nullity objection was deemed abandoned. The limitation objection was held misconceived because section 7 runs against the registered proprietor, not the adverse possessor. The Land Registration Act objection was rejected outright, adverse possession being a recognition of title rather than a challenge to it. Both preliminary objections were dismissed with costs to the Plaintiff; the substantive adverse possession claim remains for determination.

Key legal issues

#
01

Whether the res judicata/sub judice objection (sections 6 and 8 of the Civil Procedure Act) was sustainable as a preliminary objection

Holding

Dismissed. The Defendants did not exhibit proceedings of the alleged pending suits, and four succession causes were introduced for the first time in submissions without affidavit evidence, denying the Plaintiff a chance to respond; the objection required factual investigation.

Reasoning

The court could not verify the requirements of section 6 without the pleadings or proceedings of the five cited matters. Most were succession causes whose issues differ from an adverse possession claim. The succession causes were 'sneaked in' via submissions only, so the objection failed both on facts and on fair hearing grounds.

p. 3
02

Whether the suit was filed in the wrong court (sections 11 and 12 of the Civil Procedure Act)

Holding

Objection dismissed. Section 38 of the Limitation of Actions Act confers jurisdiction on the High Court (a superior court) for adverse possession declarations; the Siakago magistrate's court was not competent to try the suit notwithstanding pecuniary jurisdiction.

Reasoning

Section 11 requires filing in the lowest grade court competent to try the suit. Since section 38(1) of the Limitation of Actions Act vests the declaration jurisdiction in the High Court, only a superior court is competent; the suit properties falling within Embu ELC's local limits satisfied section 12.

p. 3
03

Whether the suit was time-barred under section 7 of the Limitation of Actions Act

Holding

Objection dismissed as misconceived; section 7 applies against the registered proprietor, not the adverse possessor whose claim springs to life only upon extinguishment of the owner's proprietary rights.

Reasoning

The Defendants cited no authority for the strange proposition that the 12-year period runs against the adverse possessor. A plain reading of the Act shows the right to sue accrues only when the registered owner is time-barred from recovering the land, so the limitation defence cannot defeat an adverse possession claim.

p. 3
04

Whether the adverse possession claim offended sections 24, 25 and 26 of the Land Registration Act, 2012 on indefeasibility of title

Holding

Objection rejected outright as misconceived and mischievous; adverse possession is a recognition of registered title, not a challenge to it.

Reasoning

The Defendants argued that a registered proprietor's rights are absolute and can only be challenged on grounds in section 26. The court held this misunderstands adverse possession, which asserts that the owner's right of recovery has been extinguished rather than attacking the validity of the title itself.

p. 3
05

Whether the suit is a nullity

Holding

Objection deemed abandoned as it was not argued in submissions, and disallowed.

Reasoning

The Defendants' submissions did not address the nullity objection, so it was abandoned and disallowed without further consideration.

p. 3

Legal principles established

#
  • A preliminary objection cannot be sustained where it requires investigation of facts.
  • The limitation period under section 7 of the Limitation of Actions Act runs against the registered proprietor, not the adverse possessor; a claimant's right to sue for adverse possession arises only upon the registered owner being time-barred.
  • A claim for adverse possession is not a challenge to a registered owner's title but a recognition of it with the assertion that the right to recover the land has been extinguished.
  • An originating summons for adverse possession under section 38 of the Limitation of Actions Act must be tried by a superior court; pecuniary competence of a magistrate's court does not make it the competent court under section 11 of the Civil Procedure Act.

Court orders

#
  1. 1.The Defendants' notices of preliminary objection dated 27th April 2018 and 17th May 2018 are dismissed
  2. 2.Costs of the preliminary objections awarded to the Plaintiff

Authorities

#

Legislation

  • Limitation of Actions Actsections 7, 37, 38
  • Civil Procedure Actsections 6, 8, 11, 12
  • Civil Procedure RulesOrder 37 Rules 7 and 19
  • Land Registration Actsections 24, 25, 26
  • Land Adjudication Actsection 29

Cases cited (1)

  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    [1969] EA 696
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act (Cap 22) read with Order 37 Rules 7 and 19 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Efureith Irima Mbogo v Ibara Mwaniki & 6 others [2018] KEELC 1180 (KLR)", Case Analysis (2018). Embu ELC Case No. 48 of 2017 (Originating Summons dated 11th April 2017, amended 27th March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1180/eng@2018-10-25

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