Ndegwa v Gichuhi (Environment and Land Case 307 of 2017) [2018] KEELC 4918 (KLR)
The bottom line
#A Kenyan land buyer lost 0.5 acres because buying land already under someone's adverse possession claim gave him no valid title.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant acquired a good title
The Defendant did not acquire good title; adverse possession is an overriding interest and he was not a bonafide purchaser for value without notice, the transfer having occurred during the pendency of the Kerugoya suit.
The Defendant obtained title by transfer from the personal representative of the deceased registered owner during the pendency of the Kerugoya suit. The Kerugoya court had found that transfer suspect. Adverse possession is an overriding interest under section 28(h) of the Land Act, and following Githu v Ndeete, a change of ownership does not interrupt adverse possession. Fraud was not canvassed as it was irrelevant.
Whether the suit is incompetent for non-joinder of the Defendant in ELC No. 51/2014
The suit is not incompetent. Order 1 rule 9 provides that no suit is defeated by misjoinder or non-joinder, and the Kerugoya court deliberately left the Plaintiff free to file a fresh suit against the Defendant.
The Defendant was not enjoined in the Kerugoya suit, so no orders could issue against him there, but the court in that suit appreciated his registration during pendency and granted leave to file a fresh suit. Order 1 rule 9 bars defeat of a suit for non-joinder, so this Court could determine the controversy as between the present parties.
When time for adverse possession began to run
Time began running in 1994 when the Plaintiff entered the suit portion on account of a void contract, not in 2014 upon the Defendant's registration.
The court adopted the reasoning of the earlier Kerugoya judgment that the Plaintiff's entry in 1994 founded a claim in adverse possession. The subsequent transfers of ownership, first to Eliud Macharia Maina and then to the Defendant, did not defeat the adverse possession rights that had already accrued to the Plaintiff.
Legal principles established
#- A change of ownership of land occupied by a person in adverse possession does not interrupt that person's adverse possession.
- Adverse possession is an overriding interest under section 28(h) of the Land Act that binds registered owners even if not noted on the register.
- No suit shall be defeated by reason of misjoinder or non-joinder of parties.
- A transferee who takes land during the pendency of a suit over it, with knowledge of occupation, is not a bonafide purchaser for value without notice.
Court orders
#- 1.A declaration that the title of Kanyi Gichuhi to a portion measuring 0.5 acres out of land parcel No. Loc.15/Geitwa/70, being the portion subject of Kerugoya ELC Case No. 51 of 2014 (O.S), has been extinguished and now belongs to the Plaintiff.
- 2.An order requiring and directing the Land Registrar Murang'a to sub-divide land parcel No. Loc.15/Geitwa/70 so that the 0.5 acres portion is excised and registered in the name of John Mwangi Ndegwa in place of Kanyi Gichuhi.
- 3.The costs of the suit to be borne by the Defendant.
- Jurisdiction invoked
- Sections 17 and 38 of the Limitation of Actions Act, Section 7(d) of the Land Act and Order 37 rule 7 of the Civil Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndegwa v Gichuhi (Environment and Land Case 307 of 2017) [2018] KEELC 4918 (KLR)", Case Analysis (2018). Environment and Land Court Case (Originating Summons) - Kerugoya ELC No. 51 of 2014 referred suit, Murang'a. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4918/eng@2018-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.