William Kamoiro & 12 others v Ngare Mahihu & another [2018] KEELC 3604 (KLR)
The bottom line
#A Kenyan court threw out an adverse possession claim because the clock had not run long enough while the land was still owned by a government body.
What this practically means
#Executive summary
#Key legal issues
#Whether time for adverse possession can run while the land is registered in the name of the Settlement Fund Trustees
It cannot; the SFT is a government institution and time cannot be computed against it. Time only began running when the respondents, private citizens, were registered on 22 December 2015.
The court examined the Green Card showing the SFT as first registered proprietor on 30 November 2011 and the respondents as second proprietors from 22 December 2015. Relying on the Court of Appeal decision in Gitu vs Ndungu, it held that the period under SFT registration is excluded from the 12-year computation. The suit, filed on 5 October 2016, came less than a year after the respondents' registration, so the claim was premature.
Whether the supporting affidavit sworn by David Kamoiro, alleged to be a stranger to the suit, rendered the suit incurably defective
The court found it unnecessary to decide this ground since the suit failed on the limitation issue.
Having determined that the applicants could not demonstrate the 12 years of possession required, the court declined to address the second ground of the preliminary objection concerning the affidavit, as the first ground was dispositive of the suit.
Legal principles established
#- Time when land is registered in the name of the Settlement Fund Trustees, a government institution, cannot count towards the 12 years required to obtain title by adverse possession; time begins to run against private registered proprietors from the date of their registration
Court orders
#- 1.The preliminary objection succeeds
- 2.The applicants' suit is dismissed with costs to the respondents
- Jurisdiction invoked
- Original jurisdiction under Sections 17, 18, 37 and 38 of the Limitation of Actions Act, Cap 22, and Order 36 Rule 3D of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Kamoiro & 12 others v Ngare Mahihu & another [2018] KEELC 3604 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3604/eng@2018-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.