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ELCAllowedELC Suit No. 81 of 2012· [2018] KEELC 4495 (KLR)

Mbijiwe Marangu Muchiri v Kabirichu Joshua & 2 others [2018] KEELC 4495 (KLR)

Environment and Land Court
21 February 2018
1,311 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 gave a man full ownership of land he occupied for 40 years, ruling later buyers could not displace his adverse possession claim.

What this practically means

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Executive summary

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The plaintiff sued claiming that he purchased parcel Abothuguchi/Lower Kaongo/514 (2¾ acres) from the 1st defendant in 1975 under a written agreement, took exclusive possession, and became entitled to the land by adverse possession after the sale failed for want of Land Control Board consent. The 1st defendant did not defend the suit and judgment was entered against him on 26:10:15. The 2nd and 3rd defendants, successive purchasers (the 2nd defendant buying in 1987 and selling 1¼ acres to the 3rd defendant in 2012), denied the claim, asserting that the plaintiff occupied only ¼ acre and that the only previous occupant was a woman called Kamene who left in 1993. The court framed two issues: whether the plaintiff had been in peaceful, open, exclusive and uninterrupted possession for over 12 years, and whether that occupation was adverse to the registered owner's title. Relying on the green card showing the plaintiff's first caution lodged on 03:05:1977 claiming purchaser's interest, the admissions of the 2nd defendant that he never built on or occupied the land, and the evidence that the plaintiff lived there with his family, the court found the plaintiff's occupation hostile, open and notorious from about six months after the failed 1975 agreement, and held that transfers to the defendants did not interrupt a claim already matured. The court declared the plaintiff owner of the entire parcel by adverse possession, ordered rectification of the register, directed the defendants to execute transfer documents (with the Executive Officer empowered to sign in default), and awarded costs against the 1st defendant only.

Key legal issues

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01

Whether the plaintiff's occupation since 1975 amounted to adverse possession

Holding

Plaintiff entered under a 1975 sale agreement that failed for want of Land Control Board consent; his occupation became hostile from about six months after the agreement and he dispossessed the original owner.

Reasoning

The court found the 1975 agreement plausible, corroborated by the first caution lodged on 03:05:1977 claiming purchaser's interest, long before the 2nd defendant bought the land in 1987. Occupation was without the original owner's permission once the agreement failed, and was open, notorious (plaintiff lived there with his wife and child) and hostile, as shown by repeated cautions.

p. 3
02

Whether subsequent transfers of the land to the 2nd and 3rd defendants interrupted the adverse possession

Holding

No - the 2nd and 3rd defendants never took possession, and by the time the 3rd defendant bought the land, the plaintiff's claim had already matured.

Reasoning

The 2nd defendant admitted he never built on the land and that no family member stayed there; he found a woman (Kamene) on the land in 1987 and only reported the plaintiff to the Chief after 1993. Transfer of title to parties who never took possession could not defeat a claim that had already crystallised against the original owner.

p. 3

Legal principles established

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  • Adverse possession of land matures against the original owner once occupation becomes hostile, peaceful, open and uninterrupted for over 12 years, including occupation under a botched sale agreement where the vendor fails to obtain Land Control Board consent.
  • A mere change of ownership of land occupied by a person in adverse possession does not interrupt that person's adverse possession claim.

Court orders

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  1. 1.Declaration that plaintiff has acquired ownership and title to the entire parcel of land ABOTHUGUCHI/LOWER KAONGO/514 by adverse possession
  2. 2.Rectification of the register for parcel ABOTHUGUCHI/LOWER KAONGO/514 by removing the names of the 2nd and 3rd defendants and substituting the name of MBIJIWE MARANGU MUCHIRI
  3. 3.Order for the 2nd and 3rd defendants to execute all relevant transfer documents, and in default the Executive Officer of the court authorized to execute such transfer documents
  4. 4.Costs of the suit awarded against the 1st defendant only

Authorities

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Legislation

  • Limitation of Actions Act (implied by the 12-year adverse possession threshold discussed by the court)12-year period
  • Land Control Act (implied - consent of Land Control Board)consent to transfer of agricultural land

Cases cited (1)

  • Lenola Nerima Karani Vs. Willliam Nanyamo
    [2012] Eklr
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title and occupation of land (claim for adverse possession)

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, "Mbijiwe Marangu Muchiri v Kabirichu Joshua & 2 others [2018] KEELC 4495 (KLR)", Case Analysis (2018). ELC Suit No. 81 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4495/eng@2018-02-21

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