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ELCPartially AllowedNot stated in the judgment as provided· [2018] KEELC 1301 (KLR)

John Njoroge Muhuha v Joseph Njuguna Mwaura [2018] KEELC 1301 (KLR)

Environment and Land Court
16 October 2018
BEB M Eboso
2,892 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a land title obtained without succession and confirmed 27 years of occupation gave the defendant ownership by adverse possession.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Land Title Number Loc 16/Gatura/383, sued for the eviction of the defendant, who had erected structures on the land. The defendant defended the suit and counterclaimed, contending that the plaintiff's father had sold the suit property to the defendant's father in the 1960s, that the plaintiff had procured registration of the property in his own name in 1982 by impersonating his deceased father without undertaking succession, and that in any event the defendant had been in open, exclusive and uninterrupted possession since 1966, entitling him to title by adverse possession. At the hearing, the plaintiff admitted he had not carried out succession before procuring registration and did not know when the defendant entered the land. Elders had earlier adjudicated the dispute in the defendant's favour. The court framed two issues: the validity of the plaintiff's title and whether the defendant had acquired title by adverse possession. It found the plaintiff's title unprocedurally and fraudulently obtained and therefore not a valid protected title, and found that the defendant's uninterrupted occupation since 1966 extinguished the proprietor's title after 12 years, crystallising the defendant's adverse title in 1978. The plaintiff's suit was dismissed. The counterclaim succeeded in part: the court declared the transfer and registration of the property in the plaintiff's name illegal, null and void, ordered rectification of the register by cancelling the plaintiff's name, and declared the defendant the beneficial owner by adverse possession, but declined to order entry of the defendant's name in the register, directing him instead to invoke Section 38 of the Limitation of Actions Act by originating summons. The plaintiff was ordered to bear the costs of the suit.

Key legal issues

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01

Validity of the plaintiff's title

Holding

The plaintiff's title was invalidly and fraudulently obtained because he procured registration in 1982 in the name of his deceased father without undertaking succession proceedings

Reasoning

The suit property was registered in the plaintiff's father's name in 1963; the father died in 1969. In 1982 the plaintiff, purporting to be also known as Njoroge P Muhuha, caused the property to be registered in his own name without any succession proceedings. The court found no evidence of succession and held the title was unprocedurally and fraudulently procured.

p. 3
02

Adverse possession

Holding

The defendant, in uninterrupted possession since 1966, acquired title by adverse possession which crystallised in 1978 upon expiry of 12 years

Reasoning

The defendant had resided on the suit property since 1966, developed it and raised his family there. By the time the eviction suit was filed in 1990 he had possessed the land exclusively and without interruption for 27 years. Possession was adverse to the registered proprietor whose title was thereby extinguished by operation of law after 12 years.

p. 3

Legal principles established

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  • A title obtained by impersonating a deceased registered owner, without succession proceedings, is fraudulent and not a valid protected title
  • Adverse possession for the statutory period of 12 years extinguishes the proprietor's title and crystallises an adverse title

Court orders

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  1. 1.The plaintiff's suit is dismissed for lack of merit
  2. 2.It is declared that the transfer and/or registration of Land Title Number Loc. 16/Gatura/383 in the name of the plaintiff, John Njoroge Muhuha, is illegal, null and void
  3. 3.The Land Registrar, Thika, is directed to rectify the register by cancelling the name of John Njoroge Muhuha from the register of Land Title Number Loc.16/Gatura/383
  4. 4.It is declared that Joseph Njuguna Mwaura is the beneficial owner of the suit property having acquired title thereto in 1978 under the doctrine of adverse possession
  5. 5.The plaintiff shall bear costs of this suit

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38 (and Section 38(1))
  • Civil Procedure RulesOrder 36(3)(D); Section 26
  • Registered Land Act (repealed)

Cases cited (9)

  • Francis Gitonga Macharia vs. Muiruri Waithaka
    NRB CA No. 110 of 1997
  • Nahashon Muriithi Jeremiah v Nelson Mwangi Kingoro
    Kerugoya ELC No. 818 of 2013(OS)
  • Titus Kigato Munyi v Peter Mburu Kimani
    Kerugoya ELC suit No. 63 of 2013
  • Chevron (K) Ltd vs. Harrison Charo Wa Shutu
    (2016) eKLR
  • Gulam Mariam Noordin vs. Julius Charo Karisa
    Malindi CA No. 26 of 2015
  • Kahindi Ngala Mwagandi vs. Mtana Lewa
    (2014) eKLR
  • R v Rosemary Wairimu Munene ex parte Ihururu Daily Farmers’ Cooperative Society Ltd
    JR No. 6 of 2014
  • Cecil Karuru Ngayu vs. Barclays Bank of Kenya & another
    (2016) eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & others
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over title to and possession of registered land

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, "John Njoroge Muhuha v Joseph Njuguna Mwaura [2018] KEELC 1301 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1301/eng@2018-10-16

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