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ELCDismissedMeru ELC Originating Summons (not stated in judgment)· [2018] KEELC 2632 (KLR)

Julius Kathurima M’itwamwari & another v Charles M.K Gikundi & another [2018] KEELC 2632 (KLR)

Environment and Land Court
23 May 2018
LMLucy N. Mbugua
1,826 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a 35-year land occupation claim because adverse possession cannot be asserted against a bank that never owned the land.

What this practically means

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Executive summary

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By originating summons filed on 20 November 2009, the plaintiffs sought determinations that they had occupied the suit land openly and peacefully for over 35 years, that parcel Nyaki/Mulathankari/635 overlapped parcel Nyaki/Mulathankari/612 (where the 1st plaintiff had built a permanent house), and that the 2nd defendant bank ought to have inspected the land before advancing a loan to the 1st defendant secured by parcel 635. Interim injunctions stopping a scheduled auction were granted in November 2009, but the interlocutory application was never prosecuted. Interlocutory judgment was entered against the 2nd defendant on 23 September 2010, but on 15 February 2012 the suit was dismissed against the 1st defendant for want of prosecution, with costs. The plaintiffs obtained a stay pending an intended appeal and proceeded to formal proof against the 2nd defendant only. At formal proof the plaintiffs' witnesses, including a licensed surveyor, established that parcel 635 encroached 0.17 hectares into parcel 612. The court held that the surviving claim could only lie against the 2nd defendant, but since the bank was never the registered proprietor of parcel 635 and there was no evidence the advertised sale took place, no claim for adverse possession could be sustained against it. The claim to amend the registry index map lay against the registered owner, against whom no claim subsisted. The suit was dismissed against the 2nd defendant with no orders as to costs, the dismissal against the 1st defendant with costs was maintained, and the stay orders of 17 July 2012 were discharged.

Key legal issues

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01

Whether a claim for adverse possession lies against a bank chargee that is not registered as proprietor

Holding

It does not; adverse possession requires the person against whom time runs to be the registered owner claiming possession

Reasoning

The court noted that although the bank advanced a loan secured by parcel No. 635, there was no evidence the bank became the registered proprietor. The land had been scheduled for sale but the sale did not clearly take place, and no recent search certificate was availed to confirm the parcel's status. Without the bank being the registered owner in possession, the essential elements of adverse possession against it could not be established.

p. 3
02

Whether orders affecting parcel No. 635 could be made against the 1st defendant after dismissal of the suit against him

Holding

No; no orders could issue against the 1st defendant since the dismissal for want of prosecution had never been set aside

Reasoning

The court's ruling of 15.2.2012 dismissed the suit against the 1st defendant for want of prosecution and that ruling remained unchallenged and unvaried. Any claim to amend the registry index map was effectively a claim against the registered owner of parcel No. 635, whether the 1st defendant or an unknown person. Since no viable claim subsisted against the 1st defendant, no orders could issue against him.

p. 3

Legal principles established

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  • Adverse possession cannot be asserted against a chargee bank that is not the registered proprietor of the land

Court orders

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  1. 1.The suit as against the 2nd defendant is dismissed with no orders as to costs
  2. 2.The case against the 1st defendant stands as dismissed with costs to the 1st defendant per the court's ruling of 15.2.2012
  3. 3.The stay orders given on 17.7.2012 are discharged
Jurisdiction invoked
not stated in judgment

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, "Julius Kathurima M’itwamwari & another v Charles M.K Gikundi & another [2018] KEELC 2632 (KLR)", Case Analysis (2018). Meru ELC Originating Summons (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2632/eng@2018-05-23

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