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ELCDismissedELC Civil Suit No. 317 of 2009 (O.S)· [2018] KEELC 1926 (KLR)

James Karegi Kirathe v Joseph Kamau Toro & another [2018] KEELC 1926 (KLR)

Environment and Land Court
20 September 2018
AOA. Omollo
3,412 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A man who paid rent to live on a Mombasa plot lost his ownership claim because permission and rent defeat adverse possession and land sales must be written.

What this practically means

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Executive summary

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The plaintiff brought an amended originating summons seeking registration as proprietor of Plot Sub Division 3733/Section 1/Mainland North, Mombasa, on two alternative bases: adverse possession and purchase for value from the 1st defendant, whose subsequent transfer to the 2nd defendant he sought to impugn as fraudulent. The defendants, through the 1st defendant's son and estate administrator, maintained that the plaintiff was a tenant from December 1987 who paid rent of Kshs 5,000 monthly, producing rent receipts, bounced cheques and correspondence, and that the money paid via the mutual employer ALICO was compensation for an agency development fee, not purchase price. The court framed three issues: purchase, adverse possession and costs. On purchase, it held the alleged oral agreement offended section 3 of the Law of Contract Act, the payment letter referred to compensation rather than price, and the plaintiff failed to discharge the burden under sections 107 and 108 of the Evidence Act; no sale was proved. On adverse possession, entry was permissive, rent was paid, and the plaintiff did not prove withdrawal of consent, so possession was never adverse, applying Wambugu v Njuguna and Wanje v Saikwa. The amended originating summons was dismissed with costs to the defendants, who were declared at liberty to recover rent arrears from 2004 to date at Kshs 5,000. No special damages for improvements were awarded, none having been pleaded.

Key legal issues

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01

Whether the plaintiff purchased the suit property

Holding

No sale was proved

Reasoning

The alleged sale was oral, contrary to section 3 of the Law of Contract Act requiring a written, signed and witnessed agreement. The letter of 26.2.1988 described the payment to the 1st defendant as compensation, not purchase price. There was no proof of offer and acceptance between the parties, and the plaintiff failed to discharge the evidentiary burden under sections 107 and 108 of the Evidence Act.

p. 3
02

Whether the plaintiff acquired title by adverse possession

Holding

The claim failed

Reasoning

Entry in December 1987 was with the 1st defendant's permission. Receipts for rent, bounced cheques and a letter replacing unpaid cheques proved a landlord-tenant relationship. The plaintiff did not prove when any consent to occupy was withdrawn, and possession was not inconsistent with the owner's enjoyment of the land, so the 12-year period could not run.

p. 4

Legal principles established

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  • A person who occupies land with the owner's consent cannot claim adverse possession
  • An oral sale of immovable property contravenes section 3 of the Law of Contract Act

Court orders

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  1. 1.The amended originating summons dated 17th April 2015 is dismissed
  2. 2.The defendants are at liberty to recover arrears of rent at Kshs 5,000 from the year 2004 to date
  3. 3.The defendants are awarded the costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsection 17
  • Law of Contract Act (Cap 23)section 3
  • Evidence Actsections 107 and 108

Cases cited (4)

  • Peter Mbiri Mcihuki vs Samuel Michuki
    (2014) eKLR
  • Wambugu vs Njuguna
    (1983) KLR 173
  • Wanje & Others vs A. K Saikwa & Others
    (1984) eKLR
  • Alfeen Mehdi Mohammed vs Basil Feroz Mohamed & 223 others
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under an originating summons for adverse possession

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, "James Karegi Kirathe v Joseph Kamau Toro & another [2018] KEELC 1926 (KLR)", Case Analysis (2018). ELC Civil Suit No. 317 of 2009 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1926/eng@2018-09-20

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