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ELCPartially AllowedELC Case No. 163 of 2017 (consolidating ELC No. 366 of 2012 and Originating Summons No. 641 of 2012)· [2018] KEELC 2077 (KLR)

Peter Mburu Kamau v Lawrence Kamau Kariuki [2018] KEELC 2077 (KLR)

Environment and Land Court at Thika
6 June 2018
3,315 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 ruled that living on family land with the owner's permission can never ripen into adverse possession, and dismissed the claimant's bid to claim the property.

What this practically means

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Executive summary

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Two consolidated suits (ELC No. 366 of 2012 and Originating Summons No. 641 of 2012, the latter the leading file) concerned Title No. Lari/Kambaa/281, registered on 19th July 1990 in the name of John Kariuki Kamau, who died in 2005. Peter Mburu Kamau, the deceased's brother, sought to be declared entitled to the land by adverse possession under Section 38 of the Limitation of Actions Act and to be registered as proprietor, and had lodged a caution claiming beneficial interest. Lawrence Kamau Kariuki, the deceased's son and administrator, sought removal of structures and debris, a permanent injunction against trespass, removal of the caution, and aggravated damages. The court applied the principle that occupation under leave and licence is not adverse, as permission and adverse possession cannot co-exist (Wambugu v Njuguna; Kimani Ruchine v Swift Rutherfords). Peter Mburu Kamau admitted occupying with the permission of his brother; even measured from the proprietor's death in 2005, the 2012 suit was filed within 12 years. His evidence of a family trust was disregarded as unpleaded, following the trite principle that parties are bound by their pleadings. The caution was found unjustified as no beneficial interest was proved, and the Plaintiff held his own registered parcel. The Originating Summons was dismissed entirely with costs; the Defendant's claim succeeded on prayers (a), (b) and (c) - removal of structures and restoration, permanent injunction and removal of the caution - but aggravated damages were refused because the occupation was permissive. Judgment delivered by L. Gacheru J at Thika on 6th June 2018.

Key legal issues

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01

Whether Peter Mburu Kamau acquired Lari/Kambaa/281 by adverse possession

Holding

Claim dismissed; occupation was permissive as a licensee of the deceased registered proprietor and never adverse

Reasoning

The Applicant claimed over 50 years' occupation, but admitted he was allowed to occupy by his brother, the registered proprietor, who never evicted him. Possession with permission is not adverse since permission and adverse possession cannot co-exist. Even measuring time from the proprietor's death in 2005, the 2012 suit was filed within 12 years. Further, evidence of a family trust was disregarded because trust was never pleaded.

p. 4
02

Whether the caution lodged by Peter Mburu Kamau was justified

Holding

Not justified; he proved no beneficial interest and holds his own registered parcel

Reasoning

The caution was lodged on 9th March 2012 claiming beneficial interest, only after a notice to vacate. Having found the occupation permissive and not adverse, the court held no beneficial interest was proved. The Plaintiff also holds a title to Escarpment Jet Scheme/1776, so he could not claim beneficial interest over his late brother's land. Under Section 73(1) of the Land Registration Act 2012 the court ordered its removal.

p. 4
03

Whether Lawrence Kamau Kariuki is entitled to the reliefs in ELC No. 366 of 2012

Holding

Entitled to prayers (a), (b) and (c) - removal of structures and restoration, permanent injunction, and removal of caution - but not aggravated damages

Reasoning

As administrator of the estate, the Defendant should be free to administer and distribute it; the caution made any disposition impossible. Since the Plaintiff's occupation was permissive, it was not trespass and aggravated damages were refused. The Plaintiff has his own registered parcel to which he can move.

p. 4

Legal principles established

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  • Occupation under a licence is not adverse; possession is either permissive or adverse and the two cannot co-exist; time begins to run only upon determination of the licence
  • Parties are bound by their pleadings and evidence at variance with the pleadings must be disregarded

Court orders

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  1. 1.Dismissal of the Plaintiff's claim in the Originating Summons (ELC No. 641 of 2012) entirely, with costs to the Defendant
  2. 2.The Defendant's claim in ELC No. 366 of 2012 succeeds in terms of prayers (a), (b) and (c) only, namely: removal of the semi-permanent structures, building materials and debris from Title No. Lari/Kambaa/281 and restoration of the suit property; a permanent injunction restraining the Plaintiff from trespassing on the suit property; and removal/cancellation of the caution registered against the title
  3. 3.Aggravated damages refused
  4. 4.Plaintiff (Peter Mburu Kamau) to bear costs of the suit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; claim for adverse possession under Section 38 of the Limitation of Actions Act Cap 22 and removal of caution under Section 73(1) of the Land Registration Act 2012

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, "Peter Mburu Kamau v Lawrence Kamau Kariuki [2018] KEELC 2077 (KLR)", Case Analysis (2018). ELC Case No. 163 of 2017 (consolidating ELC No. 366 of 2012 and Originating Summons No. 641 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2077/eng@2018-07-06

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