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ELCAllowedOriginating Summons dated 3rd May, 2012 (Makueni)· [2018] KEELC 3769 (KLR)

Christopher Musyoka Musau v Jonathan Kituu Kiia [2018] KEELC 3769 (KLR)

Environment and Land Court (High Court)
20 March 2018
MCMbogo C.G
1,230 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan farmer who occupied land for over 30 years after a void sale won full ownership through adverse possession.

What this practically means

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Executive summary

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The plaintiff, a businessman in the hotel industry, purchased land parcel Kiteta/Kiambwa/362 from the defendant in 1985. Although the defendant signed consent forms and handed over the original title deed, the Land Control Board declined to consent to the transfer because the defendant was required to appear in person and persistently failed to do so. By an Originating Summons dated 3rd May, 2012, the plaintiff sought a declaration that he was entitled to the 0.5-hectare parcel by adverse possession. The suit proceeded undefended after the defendant failed to file a reply despite service, and was disposed of by viva voce evidence on 23rd January, 2018. The plaintiff testified that he had been in quiet, open and continuous possession, farming the land for over 30 years, and produced the title deed, certificate of search, consent forms and a 1985 letter from the defendant. Counsel submitted that the transaction, lacking Land Control Board consent, became void ab initio under the Land Control Act, and relied on Public Trustee v Wanduru, Simon Pkite Chameltor v William Loishakou and Peter Mbiri Michuki v Samuel Mugo Michuki. The court, applying the 12-year period in the Limitation of Actions Act and Francis Gitonga Macharia v Muiruri Waithaka, found the transaction void after 6 months but held that the plaintiff's open, notorious and continuous occupation for over 30 years satisfied the requirements of adverse possession. Judgment was entered for the plaintiff in terms of prayer 1, with the Deputy Registrar authorized to sign transfer forms if the defendant declined.

Key legal issues

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01

Whether the plaintiff acquired title to Kiteta/Kiambwa/362 by adverse possession

Holding

Yes. The plaintiff entered the land under a sale that became void for want of Land Control Board consent, and has been in open, notorious and continuous possession for over 30 years, well beyond the 12-year limitation period.

Reasoning

The plaintiff bought the land in 1985 and was given the original title deed. The Land Control Board refused consent because the defendant failed to appear, rendering the transaction void ab initio at the expiry of 6 months. The plaintiff nonetheless remained in continuous possession, farming the land without disturbance for over 30 years. He therefore occupied the land without lawful reason, peacefully and continuously for more than 12 years, meeting the threshold in the Limitation of Actions Act.

p. 2

Legal principles established

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  • The limitation period for acquiring title by adverse possession is 12 years under the Limitation of Actions Act.
  • A sale of agricultural land without Land Control Board consent becomes void at the expiry of 6 months from the transaction.
  • Open, notorious and continuous occupation for over 30 years satisfies the threshold for acquiring title by adverse possession.

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendant in terms of prayer 1 of the Originating Summons
  2. 2.That the plaintiff is entitled to all that piece of land measuring 0.5 hectares comprised in title No. Kiteta/Kiambwa/362 by virtue of adverse possession
  3. 3.Should the defendant decline to sign the transfer forms, the Deputy Registrar of the court is authorized to sign the same on his behalf

Authorities

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Legislation

  • Land Control ActSection 6(1)(a)
  • Land Control ActSection 8(1)
  • Limitation of Actions ActChapter 22

Cases cited (4)

  • Public Trustee vs Wanduru
    [1984] eKLR
  • Simon Pkite Chameltor Vs William Loishakou
    [2016] eKLR
  • Peter Mbiri Michuki Vs Samuel Mugo Michuki
    [2014] eKLR
  • Francis Gitonga Macharia Vs Muiruri Waithaka
    Civil Appeal No. 110 of 1997
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act (Cap 22) and Land Control Act (Cap 302) to determine adverse possession claims

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, "Christopher Musyoka Musau v Jonathan Kituu Kiia [2018] KEELC 3769 (KLR)", Case Analysis (2018). Originating Summons dated 3rd May, 2012 (Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3769/eng@2018-03-20

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