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ELCPartially AllowedOriginating Motion (Limitation of Actions Act, sections 37 and 38) - Murang'a· [2018] KEELC 4114 (KLR)

Rahab Wanja Mica v Jonah Muchoki Kariuki [2018] KEELC 4114 (KLR)

Environment and Land Court of Kenya
23 February 2018
JKJ.G. Kemei
4,479 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that occupying land openly for over 12 years can transfer ownership, but only against owners actually named in your case.

What this practically means

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Executive summary

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By originating motion under sections 37 and 38 of the Limitation of Actions Act, the plaintiff sought declarations of adverse possession and extinguishment of title over five parcels (Loc.2/Kinyona/T.27 to T.31) in Murang'a, principally Loc.2/Kinyona/T.28 registered in the defendant's name since 1971. She claimed her family had occupied the land since the 1960s and she had lived there continuously since 1973. The defendant opposed, arguing the motion was defective for want of annexed titles, that owners of the other four parcels were not parties, that title was only issued to him in 2001 so the limitation period had not run, and that a caution claiming a licensee's interest defeated adverse possession. The court held that reliefs over the four parcels whose registered owners were not joined (Samson Kagunda Chege, Naumi Wambui Kagiri) had to be struck out, as Article 50 required those owners be heard, but non-joinder was not fatal to the whole suit under Order 1 of the Civil Procedure Rules. On Loc.2/Kinyona/T.28, applying Kasuve v Mwaani Investments, the court found the plaintiff's occupation was exclusive, open, continuous and uninterrupted for over 34 years from before the 1971 registration (taking 1971, not the 2001 change-of-name entry, as the operative registration). The occupation was not permissive; the fraud ground was treated as withdrawn at trial. The plaintiff's claim succeeded on prayers 1, 2 and 3: adverse possession declared, the defendant's title extinguished, and transfer ordered, with the Deputy Registrar empowered to sign documents if necessary. Costs were awarded to the plaintiff against the defendant.

Key legal issues

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01

Whether relief over Loc.2/Kinyona/T.27, 29, 30 and 31 could be granted in the absence of their registered owners

Holding

The reliefs over those parcels were struck out; non-joinder was not fatal to the whole suit but barred relief against absent owners

Reasoning

Article 50 guarantees every person a fair hearing. The plaintiff sought reliefs affecting property rights of persons not before the court, which would affect their Article 40 property rights. Invoking Order 1, the court held the suit was not defeated by non-joinder but could only be decided as between the parties actually before it.

p. 5
02

Whether the Plaintiff established adverse possession over Loc.2/Kinyona/T.28

Holding

Yes - she had been in continuous, open, uninterrupted occupation since before 1971, exceeding the 12-year statutory period

Reasoning

The plaintiff's family occupied the land before the defendant purchased it in 1971 and never took possession. The defendant admitted the family's occupation and that he neither built nor lived on the land. The court applied the Kasuve v Mwaani test: exclusive, open, uninterrupted possession for over 12 years, with animus possidendi and publicity.

p. 7
03

From what date time began to run for limitation purposes

Holding

Time ran from the 1971 registration, not the 2001 change-of-name endorsement

Reasoning

The title entries showed registration in 1971 and a further endorsement in 2001 marked 'C/name' (change of name). The defendant did not explain the change of name. The court took the first registration of 1971 as the operative registration, so by the 2008 suit the plaintiff had occupied for about 34 years.

p. 7
04

Whether the plaintiff's occupation was permissive given the caution lodged on the suit property

Holding

The occupation was not permissive; no evidence supported a permissive entry, so the licensee doctrine did not defeat the claim

Reasoning

Relying on Hughes v Griffin and Delamere Estates v Njai, a licensee or employee residing with permission cannot claim adverse possession. However, the court found the caution claiming licensee's interest was not supported: the defendant admitted the plaintiff's family was on the land when he purchased in 1971 and no evidence of permissive entry was tendered.

p. 8
05

Whether the plaintiff proved fraud in the defendant's acquisition of title

Holding

The fraud claim was treated as withdrawn at trial and was not considered

Reasoning

Although the pleadings premised the adverse possession prayers on fraudulent acquisition, at trial the plaintiff stated her claim was on adverse possession and not fraud. The court held the ground was withdrawn and there was no need to consider it, noting she had not sought to nullify the title.

p. 7

Legal principles established

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  • Non-joinder of parties does not defeat a suit; the court may decide the matter so far as regards the rights of the parties actually before it
  • To succeed in adverse possession a claimant must prove exclusive, open possession as of right without interruption for 12 years, either after dispossessing the owner or after discontinuation of possession by the owner
  • A mere change of ownership of land occupied under adverse possession does not interrupt that adverse possession
  • The combined effect of sections 7, 13, 17 and 38 of the Limitation of Actions Act is to extinguish the title of the registered proprietor in favour of the adverse possessor at the expiry of 12 years

Court orders

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  1. 1.A declaration that the Plaintiff is entitled by way of adverse possession to land comprised in title number Loc.2/Kinyona/T.28
  2. 2.An order that the Defendant's title to Loc.2/Kinyona/T.28 measuring 1/4 of an acre is extinguished in favour of the Plaintiff under sections 37 and 38 of the Limitation of Actions Act
  3. 3.An order that the Defendant transfer Loc.2/Kinyona/T.28 to the Plaintiff free from encumbrances, failing which the Deputy Registrar be authorized to sign all necessary transfer documents and application for land control board consent
  4. 4.Prayers Nos 4, 5 and 6 (relating to Loc.2/Kinyona/T.27, 29, 30 and 31) struck out for non-joinder and abuse of process
  5. 5.Costs of the suit to be borne by the Defendant

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17, 37, 38(1) and (2)
  • Registered Land Act Cap 300Section 30
  • Civil Procedure ActOrder 36 Rules 1, 2 & 3D & F
  • Civil Procedure RulesOrder 1 Rule (non-joinder and misjoinder of parties); Order 37 rule 7(2)
  • Land Registration Act 2012Sections 7 and 28(h)
  • Constitution of Kenya 2010Articles 40 and 50

Cases cited (4)

  • Kasuve Vs Mwaani Investments Limited & 4 others
    1 KLR 184
  • Githu Vs Ndeete
    (1984) KLR 776
  • Hughes v Griffin
    (1969) All ER 460
  • Delamere Estates Limited vs Ndung'u Njai & 42 Others
    Nakuru HCCC No. 184 of 2003 (2006) eKLR
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act; Section 30 of the Registered Land Act Cap 300; Order 36 Rules 1, 2 & 3D & F of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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

Cite this brief

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Cite this brief

Caselaw, "Rahab Wanja Mica v Jonah Muchoki Kariuki [2018] KEELC 4114 (KLR)", Case Analysis (2018). Originating Motion (Limitation of Actions Act, sections 37 and 38) - Murang'a. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4114/eng@2018-02-23

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