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ELCDismissedEldoret HCCC No. 234 of 1991 (O.S)· [2018] KEELC 1442 (KLR)

Christopher Shivambo Karamoja & 2 others v Jane Njeri & 2 others [2018] KEELC 1442 (KLR)

High Court of Kenya
26 September 2018
6,382 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a 27-year-old adverse possession claim because the squatters had already been evicted before filing suit and had entered the land forcibly.

What this practically means

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Executive summary

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This is a High Court at Kitale judgment delivered by Mwangi Njoroge, J on 26th September 2018 in a long-running adverse possession dispute arising from the boundary between Sinyerere Settlement Scheme and Mwago Farm (LR No. 6628). By an Amended Originating Summons dated 5th November 1999, three plaintiffs sought declarations of ownership by adverse possession of portions of the defendants' parcels (LR 6628/10, 6628/11 and 6628/12), possession, mesne profits at Kshs.500 per acre per year from 1985, extinction of the defendants' titles, vesting orders, general damages and costs. The defendants denied the claims, asserting that the boundary was fixed by beacons, that the plaintiffs forcibly removed beacons and fences, and that the defendants retook possession in 1984 following a survey. The court held that although the plaintiffs' occupation from 1968 to 1984 exceeded 12 years, their possession was broken when the defendants re-entered in 1984, before the filing of either this suit or the earlier HCCC 62 of 1988. The plaintiffs' own prayers for possession and mesne profits from 1985 admitted loss of possession. Their forcible removal of beacons and fences also disqualified them from prescriptive relief. The court further held that a claim for adverse possession cannot survive eviction before suit, that mesne profits are inconsistent with adverse possession, and that failure to exhibit the title document under Order 37 Rule 7 was fatal. The Amended Originating Summons was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiffs identified the portions and sizes of land claimed

Holding

The court found the plaintiffs satisfactorily specified the sizes claimed through their evidence, totaling close to the 4 acres admitted by the defendants

Reasoning

Although the Amended Originating Summons did not plead the exact acreage for each plaintiff, the evidence in court fixed the sizes: 0.813 acres for the 1st plaintiff, 1.497 acres collectively for the 2nd plaintiff and 1.20 acres for the 3rd plaintiff's estate. The court held the 2nd plaintiff's claim, though not broken down per defendant, was capable of definition from the evidence.

p. 4
02

Whether the 1974 letter to the Director of Surveys interrupted adverse possession

Holding

It did not; mere letters and notices cannot stop time running against a squatter in possession

Reasoning

Relying on Githu v Ndeete and Mount Carmel Investments Ltd v Peter Thurlow Ltd as cited in Situma v Cherongo, and on Njuguna Ndatho v Masai Itumo, the court held that a demand letter does not terminate factual possession. Time continues to run unless the squatter vacates or acknowledges the true owner's title. The letter of 27th December 1974 was therefore ineffective to break the plaintiffs' possession.

p. 5
03

Whether the plaintiffs were in continuous possession for over 12 years

Holding

No; the plaintiffs lost possession in 1984 when the defendants re-established the boundary and re-entered, and they admitted not being in possession when both suits were filed

Reasoning

The court took 1968 as the year of entry but found that the 1984 survey, beacon fixing and re-entry by the defendants ended the plaintiffs' peaceful occupation. The plaintiffs' own prayers for possession and mesne profits from 1985 in both this suit and HCCC 62 of 1988 admitted loss of possession before filing.

p. 6
04

Whether forcible entry bars a claim for adverse possession

Holding

Yes; the plaintiffs' removal of beacons and fences amounted to forcible entry which disentitles them to prescriptive title

Reasoning

Relying on Mtana Kahindi Lewa v Kahindi Ngala Mwagandi, the court found from the uncontroverted replying affidavit of the 1st defendant and the defendants' evidence that the plaintiffs twice removed beacons and uprooted boundary fences. Such forcible entry places the claim outside the doctrine of adverse possession, quite apart from the interruption of possession.

p. 7
05

Whether failure to annex an extract of title is fatal

Holding

Yes; the court entirely agreed with the defendants' submission based on Order 37 Rule 7 and the cited authorities

Reasoning

Order 37 Rule 7 of the Civil Procedure Rules and the authorities of Wilson Kazungu Katana and Mtana Kahindi Lewa require a claimant in adverse possession to exhibit a copy of the title document, since the claim is anchored on land owned by a registered owner. Failure to do so is fatal to the claim.

p. 7

Legal principles established

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  • A claim for adverse possession is defeated if the claimant has been evicted or has lost possession to the registered owner before filing suit; only a claim filed before eviction can succeed
  • Letters, notices and demands by the true owner do not stop time running for adverse possession unless the squatter vacates or acknowledges the owner's title
  • A person who enters land forcibly cannot claim title by adverse possession
  • Failure to exhibit a copy of the document of title in an adverse possession claim is fatal, per Order 37 Rule 7 of the Civil Procedure Rules
  • The prayer for mesne profits is inconsistent with, and cannot coexist with, a prayer for adverse possession

Court orders

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  1. 1.The Amended Originating Summons dated 5/11/1999 is dismissed
  2. 2.Costs of the suit awarded to the defendants
Jurisdiction invoked
Original civil jurisdiction of the High Court over a claim for adverse possession under the Limitation of Actions Act and the Registered Land Act (Cap. 300)

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, "Christopher Shivambo Karamoja & 2 others v Jane Njeri & 2 others [2018] KEELC 1442 (KLR)", Case Analysis (2018). Eldoret HCCC No. 234 of 1991 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1442/eng@2018-09-26

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