Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2018] KEELC 1855 (KLR)

Cecilia Kirigo Munene (Suing as the legal representative of Hezekiah Munene) v Cecilia Kiende (Suing as the legal representative of Ruteere Kinyua) [2018] KEELC 1855 (KLR)

Environment and Land Court
26 September 2018
1,532 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a 35-year land claim because the claimant stopped using the land before her adverse possession claim matured.

What this practically means

#

Executive summary

#
The plaintiff sued claiming to have become entitled to about 2 acres of land parcel Abothuguchi/Gaitu/530, registered in the name of the defendant's late husband Ikunyua Rutere, by adverse possession. She asserted that Cecilia Kiende and her husband sold her the land for Kshs 30,000 in 1982, and that her family thereafter built a latrine and shelter, fenced the land and grazed cattle on it for some 35 years before vacating after the last harvest. The defendant denied any sale, contending her husband merely licensed the plaintiff's family to use part of the land in 1982 out of friendship, and that the plaintiff agreed to vacate in 2016 when she wished to share the land with her children following a succession cause. The court identified the ingredients of adverse possession under section 38 of the Limitation of Actions Act: exclusive continuous use for at least 12 years, actual possession, and open and notorious occupation. It rejected the licence defence, finding no evidence of the licence or its terms, and accepted that the plaintiff's occupation was open and notorious from 1982. However, because the plaintiff and her family had ceased to use the land and vacated it, the court found the claim had been interrupted, applying section 13 of the Limitation of Actions Act as explained by the Court of Appeal in Mtana Lewa v Kahindi Ngala Mwagandi. The claim was dismissed with costs to the defendant.

Key legal issues

#
01

Whether the occupation was under a licence

Holding

The alleged licence from the registered owner was not proved; there was no indication of its terms or expiry

Reasoning

The defendant asserted that her late husband gave the plaintiff's family a licence to utilise part of the land in 1982. The court found nothing indicating such a licence, noting that had one existed there would have been an indication of its duration, and the owner died in 1989 without terminating it. The court was therefore not convinced a licence existed, meaning the possession was capable of being adverse.

p. 2
02

Whether the possession was open and notorious

Holding

The plaintiff's occupation was open and notorious from 1982 during the lifetime of the registered owner

Reasoning

Although the plaintiff's family never put up a homestead on the suit land, they tilled it, and the defendant admitted they left farm implements on the land when cultivating it. The court accepted this as occupation that was open and notorious since entry in 1982 during Ikunyua's lifetime, so the character of possession was not the basis of dismissal.

p. 2
03

Whether the claim was defeated by interruption of possession

Holding

The plaintiff's vacating of the land in the last season interrupted the claim, defeating it

Reasoning

The plaintiff and her family no longer used the suit land, having vacated after the last harvest; their home was about three kilometres away, and the plaintiff's own neighbour confirmed the defendant had taken over use of the land. The court held the plaintiff appeared to have been peacefully or forcefully evicted, interrupting the claim, and rejected the submission that the 2016 interruption did not defeat the claim.

p. 3

Legal principles established

#
  • A claimant in adverse possession must have exclusive use of the land continuously for at least 12 years, be in actual possession, and the occupation must be open and notorious
  • An interruption of adverse possession before the claim matures defeats the claim, as a fresh right of action accrues only when adverse possession is resumed

Court orders

#
  1. 1.Plaintiff's case is dismissed
  2. 2.Costs of the suit awarded to the defendant

Authorities

#

Legislation

  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSection 13(1) and 13(2)
  • Limitation of Actions ActSections 9, 10, 11 and 12

Cases cited (2)

  • Mtana Lewa Versus Kahindi Ngala Mwagandi
    Civil Appeal No. 56 of 2014
  • John Nyabuto vs James Ombaye Orori and another
    (2017) eKLR
Jurisdiction invoked
Section 38 of the Limitation of Actions Act conferring jurisdiction on the High Court (ELC) to order registration of a claimant entitled by adverse possession

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Cecilia Kirigo Munene (Suing as the legal representative of Hezekiah Munene) v Cecilia Kiende (Suing as the legal representative of Ruteere Kinyua) [2018] KEELC 1855 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1855/eng@2018-09-26

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