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ELCDismissedELC Case No 188 of 2017· [2018] KEELC 4292 (KLR)

David Kariuki Gakuu v Esther Wamaitha Mwenje [2018] KEELC 4292 (KLR)

Environment and Land Court at Nyahururu
19 February 2018
2,453 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an adverse possession claim because the 12-year clock restarted when the new owner was registered in 2012, leaving the buyer far short.

What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons dated 17th December 2014 under section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, seeking a declaration that the title to parcel No. Nyandarua/Kiriita/Mairo Inya Block 2 (Ngai Ndeithia)/1403 was extinguished and that he had acquired it by adverse possession, having bought it in 1998 from the sons of the deceased James Karaya Kiragu for Ksh 110,000 and lived on it openly for about 19 years. After substituted service, interlocutory judgment was entered against the Defendant and the matter proceeded to formal proof. The court examined the official search certificate and green card and found the deceased was never the registered proprietor; the land was registered in the Government's name in 1993 and in the Defendant's name on 5th January 2012. It also held the vendors lacked valid title and letters of administration, rendering the sale agreement illegal and void ab initio under the ex dolo malo non oritur action maxim, applying Mistry Singh vs Serwano Wofunira Kulubya. Crucially, since the limitation period runs afresh upon changes in title, time ran from 5th January 2012 to December 2014 when the Plaintiff filed suit - only about two years. The Plaintiff therefore failed to prove 12 years of adverse possession on a balance of probabilities. The Originating Summons was dismissed in its entirety with no costs.

Key legal issues

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01

Whether the Plaintiff established adverse possession for the statutory period of 12 years

Holding

The claim failed because time could only run from 5th January 2012 when the Defendant was registered, and the suit filed in December 2014 interrupted possession after only about two years

Reasoning

The court examined the official search certificate and green card, which showed the land was registered in the name of the Government in 1993 and in the Defendant's name on 5th January 2012. The deceased vendor's name never featured in the title documents. Since time runs afresh upon changes in title, the Plaintiff's possession against the registered proprietor lasted barely two years before he filed suit, making the claim premature and not proved on a balance of probabilities.

p. 4
02

Whether the sale agreement of 12th September 1998 with the purported administrators of the estate of James Karaya Kiragu was valid

Holding

The agreement was illegal and void ab initio because the vendors did not hold valid title or letters of administration

Reasoning

The court found no evidence that the deceased was the proprietor of the suit land or that his sons had obtained letters of administration in Succession Cause No 1067 of 1994 as alleged in the sale agreement. Guided by the public policy maxim ex dolo malo non oritur action and Mistry Singh vs Serwano Wofunira Kulubya, the court declined to enforce an illegal transaction and held the vendors had no valid title to pass.

p. 4

Legal principles established

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  • An action to recover land may not be brought after the end of twelve years from the date the right of action accrued
  • The period of limitation for adverse possession starts running afresh whenever there are changes in the title to the land
  • A person claiming adverse possession to registered land must apply to the High Court for an order that he be registered as proprietor in place of the registered owner

Court orders

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  1. 1.Dismissal of the Originating Summons dated 17th December 2014 and filed on 19th December 2014 in its entirety
  2. 2.No costs (each party to bear own costs of the suit)

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 7
  • Limitation of Actions Act (Cap 22)Section 13
  • Limitation of Actions Act (Cap 22)Sections 37 and 38
  • Civil Procedure RulesOrder 37 Rule 7(1)(2) and (3)
  • Civil Procedure RulesOrder 5 Rule 17(1)

Cases cited (2)

  • Mistry Singh vs Serwano Wofunira Kulubya
    1963 E.A 408
  • Kimani Ruchine & Anor -vs- Swift Rutherford & Co.Ltd and Another
    (1980) KLR 10
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap 22) and Order 37 Rule 7(1)(2) and (3) of the Civil Procedure Rules

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, "David Kariuki Gakuu v Esther Wamaitha Mwenje [2018] KEELC 4292 (KLR)", Case Analysis (2018). ELC Case No 188 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4292/eng@2018-02-19

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