Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedOriginating Summons dated 14/3/2011· [2018] KEELC 3192 (KLR)

Munyaka Kuna Company Limited v Bernado Vicezo De Masi (The Administrator of the Estate of Domenico De Masi (Deceased) [2018] KEELC 3192 (KLR)

Environment and Land Court
25 May 2018
BEB M Eboso
5,664 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

#

A Kenyan company that bought and fenced six acres in 1993/1994 won registered title decades later, because long possession created ownership through adverse possession and constructive trust.

What this practically means

#

Executive summary

#
Munyaka Kuna Company Limited took out an originating summons seeking declarations that it acquired title to six acres (LR No 42/21 and LR No 42/22, subdivisions of LR No 42/11 in Njiru, Nairobi) by purchase for value from the late Domenico De Masi, alternatively by adverse possession or prescription. The plaintiff relied on two sale agreements (20/12/1993 for five acres at Kshs 750,000, fully paid; 1/8/1994 for one acre at Kshs 150,000, with Kshs 100,000 paid), possession through fencing, and a commissioned subdivision. The defendant, the deceased's son and court-appointed administrator, denied knowledge of the sale, pleaded limitation under the Limitation of Actions Act, absence of land control board consent, and intermeddling. The court summoned advocate M A Khan, who confirmed executing the agreements, receiving the purchase price and remitting it to the deceased, and that the defendant collected the transaction file. The court found the sale proved, rejected the limitation and Land Control Act objections (the equitable reliefs were not subject to those statutes, and the land within Nairobi was not agricultural land), and held the plaintiff had acquired title by adverse possession and constructive trust after over sixteen years of possession. The claim under prescription failed for want of evidence of specific prescriptive rights. The court declared the plaintiff entitled to be registered proprietor of six acres out of LR 42/11, ordered it to meet registration costs, and directed each party to bear its own costs.

Key legal issues

#
01

Whether the deceased sold six acres to the plaintiff

Holding

The court found the sale of six acres in 1993 and 1994 proved

Reasoning

PW1 testified to the two sale agreements; PW2 the surveyor confirmed the subdivision was commissioned by the deceased; the advocate Mr Khan confirmed execution of the five-acre agreement and receipt and remittance of the full purchase price. Agreements, cheques and a receipt were produced as exhibits. The defendant's denial of knowledge was rejected as dishonest.

p. 4
02

Limitation of Actions Act as a bar to the claim

Holding

Limitation was no bar; the originating summons sought equitable reliefs not subject to statutory timelines

Reasoning

The six-year and twelve-year limitation periods for contract and land recovery had lapsed, but the originating summons did not seek specific performance; it pleaded constructive trust, adverse possession and prescription, which the court held are equitable doctrines not governed by the statutory limitation timelines.

p. 5
03

Land Control Act consent

Holding

The contracts were not void for lack of land control board consent because the land was not agricultural land

Reasoning

The land is within Nairobi City County, which under the repealed Local Government Act is a municipality; the defendant adduced no gazette notice declaring the land agricultural; and Special Condition No 3 in the Grant restricted the land to light industrial use. Consent is only required for agricultural land under Section 2 of the Act.

p. 5
04

Adverse possession

Holding

The plaintiff acquired title by adverse possession after twelve years of possession from 1993/1994

Reasoning

The plaintiff took possession through fencing immediately after the agreements, possession was continuous for over 16 years, and the defendant led no rebuttal evidence - Bruno Rosiello was not called. Dispossession pursuant to a sale contract can mature into adverse possession, per the Court of Appeal in Sammy Likuyi Adiema.

p. 6
05

Constructive trust

Holding

The deceased and his estate held the six acres as constructive trustees of the plaintiff

Reasoning

Given proof of sale, payment (full price for five acres; Kshs 100,000 of 150,000 for one acre) and over 16 years of possession, the court applied Macharia Mwangi Maina v Davidson Mwangi Kagiri, holding purchasers in possession are protected by constructive trust.

p. 6
06

Prescription

Holding

The claim under the doctrine of prescription failed for want of evidence

Reasoning

Although the plaintiff had been in possession for over 16 years, no details of specific prescriptive rights (such as easements or profits) were presented through evidence, so the court declined to make findings.

p. 6

Legal principles established

#
  • Dispossession of a vendor pursuant to a land sale contract can culminate in adverse possession running from the date of dispossession
  • A purchaser put in possession of sold land under an incomplete conveyance is protected under the doctrine of constructive trust, and the vendor's estate holds title as constructive trustee
  • Equitable reliefs of constructive trust, adverse possession and prescription are not subject to the statutory limitation timelines in the Limitation of Actions Act nor the consent requirements of the Land Control Act
  • Land within a municipality/city is exempt from the Land Control Act unless the Minister has declared it agricultural land

Court orders

#
  1. 1.It is confirmed and declared that the plaintiff, Munyaka Kuna Company Limited, has acquired title to six acres out of Land Reference Number 42/11 pursuant to the doctrines of constructive trust and adverse possession
  2. 2.It is confirmed and declared that the plaintiff is entitled to be registered the proprietor of six acres out of Land Reference Number 42/11 currently registered in the name of Domenico De Masi, now deceased
  3. 3.The plaintiff shall meet the requisite costs of registration of deed plans and processing of title
  4. 4.Each party shall bear own costs of this suit

Authorities

#

Legislation

  • Limitation of Actions ActSections 4, 4(2), 7, 9, 13, 37, 38
  • Land Control ActSections 2, 6
  • Local Government Act (repealed)
  • Townships Act (Cap 133, 1948, now repealed)
  • Constitution of Kenya 2010protection of the right to property (as discussed in Mtama Lewa)

Cases cited (4)

  • Titus Kigaro Munyi v Peter Mburu Kimani
    CA Civil Case No 28 of 2014
  • Mtama Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Sammy Likuyi Adiema v Charles Shamwati Shisikani
    (2014) eKLR
  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over claims relating to title to land

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Munyaka Kuna Company Limited v Bernado Vicezo De Masi (The Administrator of the Estate of Domenico De Masi (Deceased) [2018] KEELC 3192 (KLR)", Case Analysis (2018). Originating Summons dated 14/3/2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3192/eng@2018-05-25

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