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ELCDismissedCivil Suit No. 49 of 2015· [2018] KEELC 2527 (KLR)

Mupa Mwauchi Chichwa & others v Mary Otieno [2018] KEELC 2527 (KLR)

Environment and Land Court
5 July 2018
AOA. Omollo
2,502 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled you can never claim ownership of government land by occupying it, no matter how long you stay.

What this practically means

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Executive summary

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The plaintiff, identifying herself as Mrs Mupa Mwauchi Chichwa, sued the defendant by originating summons seeking a declaration that the defendant had no good title to land at Mrima Bwiti, revocation of the defendant's ownership, cancellation of the title and its issuance to the plaintiff on the strength of adverse possession under section 38 of the Limitation of Actions Act Cap 22. The defendant opposed, stating she was allocated plot Kwale/Mrima Bwiti SS/651 in 2007 by the government through the Settlement Fund Trustees as compensation for her plot lost to the Titanium Mining Project at Nguluku, and obtained title in 2009. Evidence established the plaintiff settled on the land after the collapse of Ramisi Sugar Factory, knowing it belonged to the government, and was excluded from the resettlement allocations. The court framed the question as whether time ran in the plaintiff's favour. Relying on section 41 of Cap 22, which bars acquisition of title to government land, and following Anne Itumbi Kiseli v James M. Muriithi, which held that Settlement Fund Trustees land is government/public land under section 167 of the Agriculture Act, the court held no adverse possession could accrue. Further, the defendant acquired title only in 2009 and the suit was filed in 2015, six years later, so the twelve-year period had not matured. The court dismissed the suit, directed the plaintiff to the relevant government agencies, and ordered each party to bear their respective costs given their limited financial means.

Key legal issues

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01

Whether adverse possession lies against government land allocated through the Settlement Fund Trustees

Holding

It does not; section 41 of the Limitation of Actions Act bars acquisition of title to government land, and SFT land is government/public land

Reasoning

The defendant was allotted the plot in 2007 from government land LR 9864 by the Settlement Fund Trustees as resettlement compensation. Section 41 of Cap 22 excludes government land from the Act's operation. Following Anne Itumbi Kiseli v James M. Muriithi, land held by SFT is government/public land under section 167 of the Agriculture Act, so the plaintiff could not acquire title by adverse possession.

p. 3
02

Whether the plaintiff's adverse possession claim had matured against the defendant's title

Holding

It had not; the defendant acquired title in 2009 and the suit was filed in 2015, only six years later, before the lapse of twelve years

Reasoning

The defendant was allotted the land in 2007 and obtained title in 2009 from the Settlement Fund Trustees. The plaintiff's occupation was against the government, against whom time could not run. The suit filed in 2015 was only six years after the defendant's title issued, so the twelve-year period required for adverse possession had not elapsed.

p. 3
03

Whether the plaintiff's grievance at her exclusion from allocation could be remedied by adverse possession

Holding

No; the proper remedy was a civil suit against the government agencies for not allocating her a plot, not a claim in adverse possession

Reasoning

The plaintiff was unhappy at being excluded from the resettlement allocations, but the defendant did not allocate herself the land. The court found the plaintiff's complaint lay against the government agencies which excluded her from the scheme, and such a claim could not be brought by way of adverse possession; she should pursue the relevant government agencies.

p. 3

Legal principles established

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  • No title by adverse possession can be acquired over public or government land, however long the occupation
  • Land held by the Settlement Fund Trustees is government/public land under section 167 of the Agriculture Act, so it is excluded from the operation of section 38 of the Limitation of Actions Act
  • A right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of limitation can run

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear their respective costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsection 38(1)
  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 41
  • Limitation of Actions Actsection 13(1)
  • Limitation of Actions Actsection 37
  • Government Land Actreferred to in section 37
  • Registration of Titles Actreferred to in section 37
  • Registered Land Actreferred to in section 37
  • Agriculture Actsection 167
  • Mining ActCap. 306 (referred to in section 41)
  • Mineral Oil ActCap. 307 (referred to in section 41)
  • Water ActCap. 372 (referred to in section 41)

Cases cited (2)

  • Anne Itumbi Kiseli vs James M. Muriithi
    (2013) eKLR
  • Faray Maharus vs J. B Martins Caleys Industries & 3 others
    MSA Civil Appeal No. 130 of 2003
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - suit filed under section 38 of the Limitation of Actions Act Cap 22

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, "Mupa Mwauchi Chichwa & others v Mary Otieno [2018] KEELC 2527 (KLR)", Case Analysis (2018). Civil Suit No. 49 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2527/eng@2018-07-05

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