Seventh Day Adventist Church (E.A) Ltd Being sued on behalf of Kutus SDA Church & another v Salome Wamutira Mukuria (Being sued as the Legal Administrator of the Estate of Elud Mukuria Karuiru & 2 others [2018] KEELC 4422 (KLR)
The bottom line
#A Kerugoya court handed two churches land they had occupied for 24 years, ruling that selling or transferring occupied land does not defeat adverse possession rights in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs' occupation was adverse to the 3rd defendant's title
Yes; the plaintiffs had been in exclusive, open and uninterrupted occupation since 1988, some 24 years, exceeding the statutory 12-year period
The court found four facts not in dispute, including the plaintiffs' possession since 1988 and that none of the defendants ever occupied the portions. The occupation began under an allocation by the then Municipal Council of Kerugoya/Kutus and continued openly, fenced and developed as churches, with the defendants' knowledge, well beyond the 12-year limitation period.
Whether the 3rd defendant's registered title was protected by indefeasibility
No; the title was subject to the plaintiffs' overriding interests and was also impeachable as acquired illegally, unprocedurally or through a corrupt scheme
Section 26(1) protects titles except where acquired through fraud, misrepresentation or illegally, unprocedurally or through a corrupt scheme. A prior judgment in Kerugoya ELC Case No. 24 of 2012 established that the original land had been surrendered to the Council in 1976 and was not part of the deceased's estate, so the transfer to the 3rd defendant was legally flawed. The plaintiffs' prescriptive rights were also overriding interests under Section 28.
Whether the failure to call the allocating Council's representative defeated the claim
No; a party need not call a witness to prove a fact provable by other evidence, and adverse possession runs against the registered proprietor
The allocation letter was self-explanatory and the allocation was not seriously contested. In any event, an adverse possession claim is directed at the registered proprietor, so the presence or absence of the Council was of no consequence to the plaintiffs' case.
Whether the sub-division and subsequent transfers interrupted adverse possession
No; rights already being acquired by prescription are overriding interests to which the new registered purchaser's title is subject
Relying on Githu v Ndeete, the court held that a mere change of ownership does not interrupt adverse possession already in course of acquisition. There was no evidence that the deceased during his lifetime or the defendants ever interrupted the plaintiffs' possession.
Legal principles established
#- To be entitled to land by adverse possession, the claimant must prove exclusive, open possession as of right without interruption for twelve years
- A mere change of ownership of land occupied by another under adverse possession does not interrupt that adverse possession; the rights being acquired are overriding interests binding on the new registered purchaser
- Rights acquired under the law relating to limitation of actions are overriding interests under Section 28 of the Land Registration Act, not requiring noting on the register
- A title acquired illegally, unprocedurally or through a corrupt scheme may be impeached despite Section 26 indefeasibility
Court orders
#- 1.That the registration of the 3rd defendant as owner of land parcel No. KABARE/NYANGATI/5767 be cancelled from the register and the said parcel be registered in the names of the plaintiffs as owners in common with equal shares
- 2.The claim against the 1st and 2nd defendants is dismissed
- 3.Each party to meet their own costs
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (claim for order that adverse possessor be registered as proprietor)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njoroge v Maina (Civil Appeal E042 of 2023) [2024] KEELC 5849 (KLR)[2024] KEELC 5849 (KLR)20 Aug 2024
- Winnie Wakio Ngari v Esther Micere Nyumu & 2 others [2021] KEELC 1043 (KLR)[2021] KEELC 1043 (KLR)5 Nov 2021
- Winnie Wakio Ngari v Esther Micere Nyumu & 2 others [2021] KEELC 1043 (KLR)[2021] KEELC 1043 (KLR)5 Nov 2021
- Beatrice Wanjiru Warui v Esther Micere Nyumu & another [2021] KEELC 2079 (KLR)[2021] KEELC 2079 (KLR)23 Jul 2021
Cite this brief
#Cite this brief
Caselaw, "Seventh Day Adventist Church (E.A) Ltd Being sued on behalf of Kutus SDA Church & another v Salome Wamutira Mukuria (Being sued as the Legal Administrator of the Estate of Elud Mukuria Karuiru & 2 others [2018] KEELC 4422 (KLR)", Case Analysis (2018). Originating Summons filed 4th March 2016 (Kerugoya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4422/eng@2018-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.