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ELCDismissedE.L.C. Case No. 255 of 2015· [2018] KEELC 1347 (KLR)

Kanyoti Kithua v Nyaga Maringa [2018] KEELC 1347 (KLR)

Environment and Land Court of Kenya at Embu
18 October 2018
1,485 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A man who occupied land since 1964 lost his adverse possession claim because Kenya's 12-year clock only starts when land is first registered.

What this practically means

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Executive summary

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The Plaintiff, Kanyoti Kithua, brought an originating summons dated 19th May 2008 under section 38 of the Limitation of Actions Act (Cap 22) seeking a declaration that he had acquired parcel No. Mbeere/Mbita/524 by adverse possession of over 12 years, an order for his registration as proprietor, and costs. He claimed to have entered and settled on the land in 1964, developing and occupying it openly and without interruption. The Defendant, Nyaga Maringa, denied the Plaintiff's occupation and development, contending that the Plaintiff occupied his brother's separate parcel and only settled on the suit land in 2008, prompting a Chief's letter in 2007/2008. The summons was directed to be treated as a plaint with viva voce evidence. The court framed three issues: proof of adverse possession, entitlement to the reliefs, and costs. It accepted the Plaintiff's evidence of exclusive, open and hostile possession since 1964, unbroken by the change of ownership. However, applying Wilson Kazungu Katana v Salim Abdala Bakswein, it held that time runs only from first registration of the land under a land registration statute; the green card showed first registration on 14th January 2000, so the 12-year period had not accrued when suit was filed in 2008. The claim failed on a balance of probabilities and the reliefs were refused. On costs, although costs follow the event under section 27 of the Civil Procedure Act, the court directed each party to bear his own costs because the parties are cousins. The originating summons was dismissed in its entirety.

Key legal issues

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01

Whether the Plaintiff proved adverse possession of Mbeere/Mbita/524

Holding

No - although the Plaintiff was in exclusive, open and hostile possession since 1964, the claim failed because the land was only first registered on 14th January 2000, so the 12-year limitation period had not accrued by the time suit was filed in 2008

Reasoning

The court accepted the Plaintiff's evidence of exclusive possession since 1964, held without force, secrecy or evasion and hostile to the title. However, applying Wilson Kazungu Katana v Salim Abdala Bakswein, the court held that time runs only from first registration under a land registration statute. The green card showed first registration on 14th January 2000; suit filed in 2008, before 12 years elapsed. Occupation prior to registration cannot be counted under the Limitation of Actions Act, so the claim failed on a balance of probabilities.

p. 2
02

Whether the Plaintiff was entitled to the reliefs sought in the originating summons

Holding

No - entitlement to the reliefs depended on success in the adverse possession claim, which failed

Reasoning

Having answered the first issue in the negative, the court held that the declaratory and registration reliefs could not issue. The failure of the substantive claim was determinative of the second issue.

p. 2
03

Who bears the costs of the action

Holding

Each party to bear his own costs, because the parties are cousins

Reasoning

The court applied section 27 of the Civil Procedure Act and the general rule that costs follow the event, but exercised its discretion to depart from that rule given the familial relationship between the parties, who are cousins.

p. 2

Legal principles established

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  • Time for adverse possession does not start running until the suit property is registered under a system of law relating to land registration; the 12-year period runs against the registered proprietor from first registration
  • A claimant for adverse possession must prove exclusive, open possession as of right without interruption for 12 years, either after dispossession or discontinuation of possession by the owner
  • Possession must be without force, secrecy or evasion and hostile to the owner's title; a change of ownership does not interrupt possession in the legal sense
  • Costs follow the event unless the court for good reason directs otherwise

Court orders

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  1. 1.The Plaintiff's originating summons dated 19th May 2008 is dismissed.
  2. 2.Each party shall bear his own costs.

Authorities

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Legislation

  • Limitation of Actions Actsection 38
  • Registered Land Act (Cap 300)null
  • Civil Procedure Act (Cap 21)section 27

Cases cited (7)

  • Wambugu Vs Njuguna
    [1983] KLR 172
  • Githu Vs Ndeete
    [1984] KLR 776
  • Kasuve Vs Mwaani Investments Ltd & 4 Others
    [2004] 1 KLR 184
  • Kimani Ruchine Vs Swift Rutherfords & Co Ltd
    [1980] KLR 10
  • Wanja Vs Sakwa No. 2
    [1984] KLR 284
  • Wilson Kazungu Katana & 101 Others Vs Salim Abdala Bakswein & Another
    [2015] eKLR
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Original jurisdiction under section 38 of the Limitation of Actions Act (Cap 22) read with the Environment and Land Court's land jurisdiction; suit originally an originating summons transferred and heard as ELC Case No. 255 of 2015

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, "Kanyoti Kithua v Nyaga Maringa [2018] KEELC 1347 (KLR)", Case Analysis (2018). E.L.C. Case No. 255 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1347/eng@2018-10-18

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