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ELCDismissedOriginating Summons dated 17th November 2015· [2019] KEELC 499 (KLR)

Edward Kimotho Mbia v Benina Gaciriku Mbia [2019] KEELC 499 (KLR)

Environment and Land Court
15 November 2019
ECE.C. Cherono
1,680 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kerugoya dismissed a 40-year adverse possession claim because the plaintiff couldn't prove continuous, uninterrupted occupation of an existing parcel.

What this practically means

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Executive summary

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By an Originating Summons dated 17th November 2015, the plaintiff sought a declaration that he had become entitled to land parcel No. INOI/KIAGA/356, registered under the Registered Land Act Cap 300, by adverse possession after over 40 years of open, exclusive and continuous occupation, together with cancellation of the defendant's title and registration of himself as proprietor. The plaintiff, who described the defendant as his step-mother, testified that following his father's death in 1989, a succession cause was taken out in which the defendant received the suit land, and that his appeal against that outcome was ultimately dismissed in 2010. A clan elder testified that the plaintiff had lived on the suit land since demarcation. The defendant denied the plaintiff's occupation of her portion, asserting the land belonged to her late husband and was sub-divided between her and Juliana Wanjiku in the succession proceedings. The court, applying the settled principles in Wambugu v Njuguna, Mbura v Gachuhi and Mtana Lewa, found that the suit parcel no longer existed, its title having been closed upon sub-division into parcels 750 and 751 registered in the names of the defendant and Elizabeth Wangechi, whom the plaintiff had not sued. The court further held that the plaintiff failed to demonstrate when time began to run, and that his possession was constantly interrupted by succession and appeal litigation between 1992 and 2010. The claim for adverse possession therefore failed and the suit was dismissed with costs to the defendant.

Key legal issues

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01

Existence of the suit property as a registered parcel

Holding

The claim fails because parcel No. INOI/KIAGA/356 no longer exists; its title was closed upon sub-division into parcels 750 and 751 registered in the names of the defendant and Elizabeth Wangechi, and the plaintiff could not identify which portion he occupied

Reasoning

The plaintiff's own search certificate showed the title closed and the property sub-divided into two portions. He confirmed he did not know on which portion he was in occupation and had not sued Elizabeth Wangechi, the registered owner of the other portion. A claim for adverse possession cannot be sustained over a non-existent parcel.

p. 2
02

When time for adverse possession began to run

Holding

The plaintiff failed to state precisely and with certainty when he entered the suit property and when the adverse title would have crystallised

Reasoning

The plaintiff merely asserted 40 years of residence but did not demonstrate the point of entry for time to start running. His claim that the defendant was given the whole suit property as a beneficiary was contradicted by the succession ruling, which showed he had not proved he was a son of the deceased and was thus disentitled from the estate.

p. 2
03

Continuity and non-interruption of possession

Holding

Possession between 1992 and 2010 was constantly interrupted by litigation (the succession cause and appeals), defeating the claim of continuous uninterrupted possession

Reasoning

The succession cause was determined in 1994 and the plaintiff's appeal was determined in 2010 in Civil Appeal No. 117 of 2009 (Embu). During the pendency of these proceedings, the plaintiff's claim to the suit property was interrupted and discontinued, so the requisite statutory period of uninterrupted possession was never achieved.

p. 2

Legal principles established

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  • Adverse possession contemplates two concepts: possession and discontinuance of possession; proof lies in whether the title holder has been dispossessed or discontinued possession for the statutory period of not less than 12 years
  • A claimant in adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption
  • Adverse possession requires possession that is peaceful, open and continuous - nec vi, nec clam, nec precario - and the claimant must demonstrate when time started running

Court orders

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  1. 1.The suit is dismissed
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Legislation

  • Registered Land Act (Cap. 300 Laws of Kenya)not specified

Cases cited (4)

  • WAMBUGU VS NJUGUNA
    (1983) K.L.R 173
  • MBURA VS GACHUHI
    (2002) I.E.A. L.R 137
  • MALIAMU NCURUBI M'IBIRI VS FRANCIS M'MANYARA M'RINGERA
    (2011) e K.L.R
  • Mtana Lewa Vs Kahindi Ngala Mwangandi
    (2005) e K.L.R
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (adverse possession claim by Originating Summons)

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, "Edward Kimotho Mbia v Benina Gaciriku Mbia [2019] KEELC 499 (KLR)", Case Analysis (2019). Originating Summons dated 17th November 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/499/eng@2019-11-15

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