Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment (Plaint dated 17th May, 2007)· [2018] KEELC 2412 (KLR)

Benard Ndichu Ndungu & another v Lucas Kingangi & 2 others [2018] KEELC 2412 (KLR)

Environment and Land Court
19 July 2018
2,409 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that land occupied openly and continuously for over 12 years belongs to the occupier, even against the registered titleholder.

What this practically means

#

Executive summary

#
The Plaintiffs, grandchildren of the late Makenyua Gatebu, registered proprietor of Ngenda/Gatukuyu/T.27 (0.76 acres), sued for a mandatory injunction requiring the Defendants to vacate and damages for trespass, alleging a 1999 invasion. The Defendants, sons of the late Murote Gaithonge, countered that their father purchased the land from the Plaintiffs' grandfather in 1959, that they have occupied it exclusively since then (their father moving out in 1974 but leaving them), and they Counter-claimed for a declaration of title by adverse possession and registration as joint proprietors. The Plaintiffs argued that an adverse possession claim could not be brought by Counter-claim, that the 2nd Defendant lacked locus standi, and that the sale agreement was false and rendered futile by lack of Land Control Board consent. The court held, applying Gulam Miriam Noordin v Julius Charo Karisa, that adverse possession may properly be raised by Defence and Counter-claim. On the evidence - the 1985 suit by the Defendants' father (Thika PMCC No. 5 of 1985), the caution registered on the title in December 1985 never lifted, and the testimony of DW2, an 87-year-old neighbour - the court found the Defendants in continuous, exclusive, adverse occupation for well over twelve years, extinguishing the Plaintiffs' title. The Plaintiffs' suit was dismissed with costs; the Counter-claim was allowed, with a declaration of joint entitlement by adverse possession, registration of the Defendants as tenants in common, and costs of the Counter-claim to the Defendants.

Key legal issues

#
01

Whether adverse possession may be claimed by Counter-claim

Holding

Yes; the Defence and Counter-claim raising adverse possession was valid.

Reasoning

The court rejected the submission that such claims must be brought by Originating Summons, relying on the Court of Appeal decision in Gulam Miriam Noordin, which held that Originating Summons under Order 37 Rule 7 is required only where a party applies to be registered as proprietor. The court also noted the court's power to do substantive justice allows registration orders even from a bare Defence.

p. 3
02

Whether the Defendants were in adverse possession for over twelve years

Holding

Yes; the court found the Defendants had occupied the land at least since 1985, well over twelve years, exclusively and without permission.

Reasoning

Relying on the Defendants' father's 1985 suit (Thika PMCC No. 5 of 1985) claiming possession since January 1959, the caution registered on 28th December 1985 which was never lifted, and the elderly neighbour's (DW2) corroborating evidence, the court rejected the Plaintiffs' assertion that the Defendants invaded in 1999 and found possession adverse for more than twelve years, extinguishing the Plaintiffs' title.

p. 3
03

Whether the Defendants could claim title based on the 1959 sale agreement

Holding

No; without Land Control Board consent the sale claim could not succeed, hence reliance on adverse possession.

Reasoning

The court accepted the claim of a 1959 purchase as plausible, but held that recovery of land on the basis of a 1959 sale without Land Control Board consent could not succeed. The proper remedy was adverse possession, which the Defendants proved. The court also found the date of the grandfather's death immaterial, since no death certificate existed and the family's applications gave conflicting dates.

p. 3

Legal principles established

#
  • A claim to land by adverse possession may be raised by way of Defence and Counter-claim; Originating Summons is only required where a party applies to be registered as proprietor.
  • The onus is on the adverse possessor to prove occupation nec vi, nec clam, nec precario, irrespective of procedure adopted.
  • The registered owner loses the right to reclaim land after twelve years of continuous, uninterrupted adverse occupation under Sections 7 and 13 of the Limitation of Actions Act.

Court orders

#
  1. 1.The Plaintiffs' suit be and is hereby dismissed with costs
  2. 2.A declaration that the Defendants have jointly become entitled to land parcel number Ngenda/Gatukuyu/T.27 by way of adverse possession
  3. 3.An order that land parcel number Ngenda/Gatukuyu/T.27 be registered in the names of the Defendants as tenants in common
  4. 4.The Plaintiffs to pay the costs of the Counter-claim

Authorities

#

Legislation

  • Limitation of Actions ActSections 7 and 13
  • Civil Procedure RulesOrder 37 Rule 7
  • Land Control Act (implied by reference to Land Control Board consent)Consent requirements

Cases cited (3)

  • Gulam Miriam Noordin & Another vs. Julius Charo Karisa
    (2015) eKLR
  • Teresa Wachika Gachira vs. Joseph Mwangi
    CA No. 325 of 2003
  • Taura Mtsanganyiko vs. Julius Mundu
    (2017) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land claims (not expressly stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Benard Ndichu Ndungu & another v Lucas Kingangi & 2 others [2018] KEELC 2412 (KLR)", Case Analysis (2018). Not stated in judgment (Plaint dated 17th May, 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2412/eng@2018-07-19

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