Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedOriginating Summons dated 21st August 2017· [2019] KEELC 340 (KLR)

Simon Gituto Ngari v Michael Kaaru Njoroge & another [2019] KEELC 340 (KLR)

Environment and Land Court
22 November 2019
ECE.C. Cherono
1,770 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded a man ownership of land he openly occupied for over 50 years, even though the title was registered to someone else.

What this practically means

#

Executive summary

#
The plaintiff brought an Originating Summons dated 21st August 2017 seeking a declaration that he had become the legal owner of land parcel No. GICHUGU/SETTLEMENT/SCHEME/150 by adverse possession exceeding 12 years since 1960, and an order that he be registered as sole proprietor in place of the registered respondent. Amendments added Peter Chomba Mwaniki as 1st defendant and the Kirinyaga Land Registrar as 2nd defendant. The plaintiff testified he was allocated the land as a gift by Kirinyaga County Council in December 1960, took possession in 1961, built a matrimonial home in 1965 and fully developed the property. He discovered the land was registered to Karu Njoroge in 1958, and despite Council letters and a Land Control Board consent in 1975, the title was never issued to him; the land was instead transferred to Michael Njoroge in 1992 and later to the 1st defendant on 29th September 2017, followed by an invasion of the property causing damage valued at over Kshs 2,000,000. Witnesses PW2 and PW3 corroborated his continuous, exclusive occupation and that the registered owners never occupied or claimed the land. The 1st defendant did not attend the hearing and his case was closed; the 2nd defendant did not enter appearance. The court framed two issues: whether the plaintiff established the principles of adverse possession, and costs. Relying on Mbura v Gachuhi and Mtava Lewa v Kahindi Ngala Mwangandi, the judge held the plaintiff's possession was peaceful, open and without the owner's permission for more than 12 years, unchallenged by any contrary evidence, and proved on a balance of probability. The suit was allowed with an order that the plaintiff be registered as owner of the parcel measuring 6.10 Ha, and there was no order as to costs.

Key legal issues

#
01

Whether the plaintiff established the principles for adverse possession of land parcel GICHUGU/SETTLEMENT/SCHEME/150

Holding

Yes. The plaintiff proved peaceful, open and non-permissive possession and occupation for over 12 years since 1965, unchallenged by the defendants, entitling him to be registered as owner

Reasoning

The plaintiff testified he was allocated the land as a gift by Kirinyaga County Council in 1960, took possession in 1961 and built a home and developed the land from 1965. His sworn averments were not controverted; neither the original registered owner Karu Njoroge nor Michael Karu Njoroge was called to rebut the evidence. The green card showed no other transfers save a caution. Applying Mbura v Gachuhi and Mtava Lewa, the possession was 'nec vi, nec clam, nec precario' for more than 12 years, proving the case on a balance of probability.

p. 3
02

Who shall bear the costs of the suit

Holding

No order as to costs

Reasoning

Although the plaintiff sought costs in the Originating Summons, the court in its discretion declined to award costs, ordering that there be no order as to costs.

p. 3

Legal principles established

#
  • A person seeking title by adverse possession must prove non-permissive, open, notorious, exclusive and adverse use for the statutory prescribed period without interruption
  • Adverse possession arises where a person takes possession, asserts rights over land and the registered owner omits or neglects to take action for the statutory period of 12 years

Court orders

#
  1. 1.The plaintiff is entitled to be registered as the owner of land parcel No. GICHUGU/SETTLEMENT/SCHEME/150 measuring 6.10 Ha
  2. 2.There shall be no order as to costs

Authorities

#

Legislation

  • Registered Land Ordinancedeclaration on transfer by way of gift

Cases cited (2)

  • Mbura Vs Gachuhi
    (2002) I.E.A.L.R 137
  • Mtava Lewa Vs Kahindi Ngala Mwangandi
    (2005) e K.L.R
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over claims relating to land, including claims for title by adverse possession

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Simon Gituto Ngari v Michael Kaaru Njoroge & another [2019] KEELC 340 (KLR)", Case Analysis (2019). Originating Summons dated 21st August 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/340/eng@2019-11-22

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