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ELCAllowedE.L.C. Case No. 243 of 2014 (formerly Kerugoya ELC 312 of 2013)· [2018] KEELC 1663 (KLR)

Ephantus Muriithi Obadiah v Ishumael Joram [2018] KEELC 1663 (KLR)

Environment and Land Court of Kenya
4 October 2018
YAY.M. Angima
1,654 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 handed a family land they had openly occupied and developed since 1961, showing occupation can defeat a registered title.

What this practically means

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Executive summary

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This Environment and Land Court at Embu decision determined an originating notice of motion dated 2nd June 1978, brought under section 38 of the Limitation of Actions Act, in which the original Applicant, Obadiah Kathanjagui, sought registration as sole proprietor of Ngandori/Kiriari/1010 on the basis of adverse possession. Obadiah claimed he had purchased the suit property from Joram Gaciithire in 1961 for Kshs 1,350/-; although no Land Control Board consent was obtained, he took possession, cleared the bushes and developed the land extensively with houses, coffee stems and tea bushes. The claim survived the death of Obadiah, who was substituted by his son Ephantus as personal representative; the claim against Joram was abandoned and proceeded against his son, Ishumael Joram, the registered proprietor. A consensual reference to arbitration before the District Officer Manyatta in 1989 produced no award, and the file was returned to court in 2008. The sole issue was whether adverse possession was established. Relying on Wambugu v Njuguna, Githu v Ndeete, Kasuve v Mwaani Investments and Kimani Ruchine v Swift Rutherfords, the court found Obadiah had been in exclusive, open, hostile and uninterrupted possession since 1961. Ishumael's occasional visits from Nairobi, and his practice of merely sending his father to ask Obadiah to vacate, amounted neither to effective entry nor to proceedings that would interrupt time. The motion was allowed in terms of Order (a), with costs to the Applicant.

Key legal issues

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01

Whether Obadiah (through his personal representative) proved adverse possession of Ngandori/Kiriari/1010

Holding

Yes - all elements of adverse possession were proved: possession from 1961, exclusive, open, hostile and uninterrupted for over 12 years

Reasoning

The court found on a balance of probabilities that Obadiah occupied the suit property from 1961, developed it permanently with houses, coffee stems and tea bushes, and that the occupation was adverse, exclusive and uninterrupted. The Respondent never occupied the land nor made an effective entry or took eviction proceedings; merely sending his father to ask Obadiah to vacate did not interrupt time.

p. 2
02

Whether the Respondent's conduct interrupted the running of limitation

Holding

No - the Respondent's acts did not constitute effective assertion of his right

Reasoning

The Respondent discovered the occupation in 1974 but neither made an effective entry into the land nor took legal proceedings for eviction; he only sent his father to ask Obadiah to move out. Per Githu v Ndeete, assertion of right requires effective entry, and notice to quit is insufficient to stop time running.

p. 2

Legal principles established

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  • To acquire title by adverse possession, the claimant must prove exclusive, open possession as of right and without interruption for 12 years
  • Time under the Limitation of Actions Act ceases to run when the owner makes an effective entry into the land; mere notice to quit is insufficient

Court orders

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  1. 1.The originating notice of motion dated 2nd June 1978 as amended on 14th March 1979 is allowed in terms of Order (a) thereof
  2. 2.The Applicant is registered as sole proprietor of Ngandori/Kiriari/1010 in place of the 2nd Respondent Ishumael Joram
  3. 3.The Applicant is awarded costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsection 38
  • Civil Procedure Rules, 1948Order LI Rule 1; Order XXXVI Rules 3D and 3F
  • Civil Procedure Actsection 27

Cases cited (6)

  • 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
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap 22) and Order XXXVI Rules 3D and 3F of the Civil Procedure Rules, 1948 (as amended)

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, "Ephantus Muriithi Obadiah v Ishumael Joram [2018] KEELC 1663 (KLR)", Case Analysis (2018). E.L.C. Case No. 243 of 2014 (formerly Kerugoya ELC 312 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1663/eng@2018-10-04

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