Peter Muiruri Kigera v John Gitau Gathenya & David Mwaura Gathenya [2019] KEELC 488 (KLR)

The court adopted the earlier ruling of Nyamweya J (5th December 2012) that periods of limitation prescribed by the Limitation of Actions Act do not apply to actions by a beneficiary under a trust. It concurred, relying on Stephens v Stephens on section 20(1)(b) of the Act, and noted that in adverse possession claims time runs against the person seeking to recover land, not the adverse possessor.

The Plaintiff produced a 1958 sale agreement between his father and the Defendants' father, took possession in 1959, and the Defendants' father died before transfer. The Defendants then devolved the property to themselves through a succession cause. The Defendants led no evidence to dispute the claim. The court, applying Twalib Hatayan and N W K v J K M, held a constructive trust arises to guard against unjust enrichment.

The court found that the several litigations over the suit property interrupted the Plaintiff's possession, which could not be held continuous and uninterrupted for the requisite 12 years, and that the constructive trust finding made it unnecessary to address the alternative prayer of adverse possession.

Following from the constructive trust finding, the court held the Plaintiff entitled to the declaratory and registration prayers. On costs, Section 27 of the Civil Procedure Act confers discretion and costs follow the event; the Plaintiff as successful litigant was awarded costs.