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ELCDismissedELC No. 434 of 2013 (O.S)· [2018] KEELC 1647 (KLR)

John Mburu Ngure v Pauline Njoki Ngure [2018] KEELC 1647 (KLR)

Environment and Land Court
19 July 2018
EOE. O. Obaga
769 words in judgment
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The bottom line

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A man living on family land for years lost his adverse possession claim because 12 years of uninterrupted possession was never achieved.

What this practically means

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Executive summary

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The plaintiff, an uncle of the defendant, filed an originating summons on 5th April 2013 claiming entitlement to half of LR No. Kabete/Gikuni/T.91 by adverse possession. The property originally belonged to the plaintiff's father, Dishon Ngure Ndungu (deceased), and was transferred to the defendant, who became registered owner on 19th February 1997. The plaintiff alleged the transfer was fraudulent, that no Land Control Board consent was obtained, and that a caution he registered was fraudulently removed. He stated he had lived on the property since 1963, built permanent houses there, and that a prior eviction suit by the defendant at the Kiambu Chief Magistrates' Court (Civil Suit No. 191 of 2005) had been dismissed for want of jurisdiction. The defendant was duly served but did not enter appearance or file a reply, so the matter proceeded by way of formal proof. The court held that adverse possession could not run against the plaintiff's father while the property remained registered in his name; time could only run from 19th February 1997 when the defendant became registered owner. The defendant's 2005 eviction suit effectively stopped time from running, leaving the plaintiff with only 8 years of possession, short of the statutory 12 years. The originating summons was dismissed with no order as to costs. The judgment was delivered at Nairobi on 19th July 2018 by E. O. Obaga J in the absence of parties.

Key legal issues

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01

Whether the plaintiff had acquired half of the suit property by adverse possession

Holding

No - the claim failed because the period of possession was interrupted by the defendant's 2005 eviction suit, leaving only 8 years of continuous possession, short of the statutory 12 years

Reasoning

The property belonged to the plaintiff's father until transferred to the defendant on 19th February 1997, so adverse possession could only run from that date against the defendant. The defendant's 2005 suit for eviction in the Kiambu Chief Magistrates' Court effectively stopped time running. The plaintiff therefore had only 8 years of possession when he filed suit in 2013, short of the 12 years required.

p. 1

Legal principles established

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  • The filing of a suit against a person in possession effectively stops time from running in favour of that person for purposes of an adverse possession claim

Court orders

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  1. 1.The plaintiff's originating summons claiming adverse possession is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (adverse possession claim over 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 Mburu Ngure v Pauline Njoki Ngure [2018] KEELC 1647 (KLR)", Case Analysis (2018). ELC No. 434 of 2013 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1647/eng@2018-07-19

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