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 AllowedELC Case No. 38 of 2018 (Formerly CMCC Embu No. 92 of 2017)· [2019] KEELC 451 (KLR)

Fredrick Mukiri Kingatia v John Njiru & 2 others [2019] KEELC 451 (KLR)

Environment and Land Court
14 November 2019
YAY.M. Angima
2,906 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court evicted family members from a relative's land, ruling that living on land with permission can never ripen into legal ownership.

What this practically means

#

Executive summary

#
The plaintiff, Fredrick Mukiri Kingatia, sued his nephews for trespass and eviction from parcel No. Ngandori/Kirigi/2012, seeking eviction, general damages for loss of user, costs and interest. The defendants denied trespass, asserting that the plaintiff had permitted them and their late mother to occupy the land in 1972, and by an amended defence counterclaimed for a declaration of adverse possession and a declaration that the Embu District Tribunal award in LDT No. 20 of 2002 (by which the plaintiff obtained title from their father, Nyaga Kabutu) was null and void. Y.M. Angima J framed six issues. On trespass, the court held that registration under Section 24 of the Land Registration Act vested absolute ownership in the plaintiff and that permission, though granted in 1972, was terminable at will and stood terminated when the plaintiff sued to assert his rights. On adverse possession, the court found the entry was permissive, that time could not run against the defendants' registered-proprietor father, and that limitation ran only from 11th December 2003 until the plaintiff filed suit on 22nd March 2005 - about one year and three months, short of the statutory 12 years. The Tribunal award, unchallenged and adopted as a decree in 2003, was held valid following Florence Nyaboke v Mogere Amosi Ombui. General damages for loss of user failed as unparticularised special damages. Judgment was entered for the plaintiff in terms of prayer (a) of the plaint; the damages claim was declined; the counterclaim was dismissed in its entirety; and, given the close relationship of the parties, each party was ordered to bear his own costs of the suit and counterclaim.

Key legal issues

#
01

Trespass

Holding

The Plaintiff, as registered proprietor, proved trespass by the Defendants whose permission had been terminated

Reasoning

Registration under Section 24 of the Land Registration Act vests absolute ownership. The Defendants entered in 1972 with permission of the Plaintiff, who showed them where to build and cultivate. Permission may be terminated at the owner's will; it was withdrawn when the Plaintiff sued the Defendants' father in 2002 to be registered as proprietor, and again by filing this suit for eviction.

p. 3
02

Adverse possession

Holding

The counterclaim failed; possession was permissive and the limitation period ran only from 11th December 2003 to 22nd March 2005, far short of 12 years

Reasoning

Although the Defendants occupied since 1972, their entry was with the consent of the Plaintiff and with the blessings of their father who was then the registered proprietor. Time could not run against their own father while he was registered owner, so limitation ran only from 11th December 2003, ceasing when the Plaintiff filed suit on 22nd March 2005 - about one year and three months.

p. 3
03

Validity of the Tribunal's award

Holding

The award in Embu LDT No. 20 of 2002, adopted as a decree in 2003, remains valid and cannot be challenged collaterally

Reasoning

The Defendants were not registered owners and so could not be joined in the Tribunal proceedings against their father. The award was never challenged by the concerned parties in the manner prescribed by law and was adopted as a decree and perfected in 2003. Following Florence Nyaboke v Mogere Amosi Ombui, it cannot be challenged through the back door after 17 years, without letters of administration to the father's estate.

p. 4
04

Damages for loss of user

Holding

Claim declined for want of particularised pleading and supporting evidence

Reasoning

Damages for loss of user are in the nature of special damages. The claimant must plead specific particulars including the rate and period for which damages are sought. The Plaintiff did not plead the claim with particularity and no evidence was led at the trial to justify an award.

p. 4

Legal principles established

#
  • Permission granted by a landowner may be terminated at the will of the owner and is a defence to trespass only while it subsists
  • Time for adverse possession stops running once the proprietor takes legal proceedings for recovery of the land
  • Time does not run against a proprietor in favour of family members living on the land as family members
  • A Tribunal award adopted as a decree of the court and never challenged in the manner prescribed by law remains valid and cannot be collaterally attacked
  • Damages for loss of user are special damages which must be specifically pleaded and proved

Court orders

#
  1. 1.Judgment entered for the Plaintiff against the Defendants in terms of paragraph 9(a) of the plaint dated 15th March 2005 (eviction from parcel No. Ngandori/Kirigi/2012)
  2. 2.The Plaintiff's claim for general damages for loss of user of land declined
  3. 3.The Defendants' counterclaim dismissed in its entirety
  4. 4.Each party to bear his own costs of the suit and counterclaim

Authorities

#

Legislation

  • Civil Procedure RulesOrder 15 Rule 2
  • Land Registration ActSection 24
  • Limitation of Actions Act(provision for 12-year period for adverse possession)
  • Civil Procedure Act (Cap. 21)Section 27 (proviso)

Cases cited (7)

  • Wambugu Vs Njuguna
    [1983] KLR 172
  • Githu Vs Ndeete
    [1984] KLR 776
  • Kasuve Vs Mwaani Investments Ltd & 4 Others
    [2004] 1 KLR 184
  • Kimani Ruchine Vs Swift Rutherfords & Co Ltd
    [1980] KLR 10
  • Wanja Vs Sakwa No. 2
    [1984] KLR 284
  • Florence Nyaboke V Mogere Amosi Ombui & 2 Others
    [2014] eKLR
  • Hussein Janmohamed & Sons Ltd V Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (jurisdiction over land disputes); suit transferred from the Chief Magistrate's Court at Embu

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

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, "Fredrick Mukiri Kingatia v John Njiru & 2 others [2019] KEELC 451 (KLR)", Case Analysis (2019). ELC Case No. 38 of 2018 (Formerly CMCC Embu No. 92 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/451/eng@2019-11-14

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