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ELCDismissedE.L.C. Case No. 50 of 2015 (O.S.)· [2019] KEELC 607 (KLR)

Joachim Njuguna Mbugua & 2 others v Jenesio Mugo [2019] KEELC 607 (KLR)

Environment and Land Court
28 November 2019
1,811 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu Environment and Land Court dismissed a Kenyan family's adverse possession claim because they could not prove exclusive, continuous occupation of the land for 12 years.

What this practically means

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Executive summary

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The three Plaintiffs brought an originating summons dated 7th May 2010 under section 38 of the Limitation of Actions Act, seeking a declaration that they had acquired 0.5 acres of land parcel Nthawa/Gitiburi/1945 by adverse possession, that the Defendant's title to that portion was extinguished, and an order compelling the Defendant to execute transfer documents. They contended they had occupied the portion openly, exclusively and continuously since 1985, erecting rental houses and cultivating crops. The Defendant denied any occupation, asserting the land had been vacant since his registration in 1995 and was used only for grazing, and sought dismissal with costs. At trial, the 3rd Plaintiff testified for the Plaintiffs, while the Defendant and his witness Titus Njeru testified that there were no houses, crops or fencing on the land. The court directed the Mbeere sub-county land surveyor to inspect the suit property; his report found no dwelling house, food or cash crops, and only one stranded cow shed structure. The Plaintiffs' private surveyor's report was rejected as general, extending over about 50 acres and 22 other parcels, without identifying specific developments on the suit property. Applying the principles in Kasuve v Mwaani Investments Ltd, the court held that the Plaintiffs failed to prove exclusive and continuous possession for the statutory period of 12 years and found it unnecessary to consider the other elements of adverse possession. The originating summons was dismissed with costs to the Defendant on 28th November 2019.

Key legal issues

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01

Whether the Plaintiffs proved exclusive, open and continuous possession of parcel 1945 for over 12 years

Holding

They did not; the government surveyor's report found no dwelling house, crops or developments save a cow shed, and the defence evidence that the land was only used for grazing was unshaken

Reasoning

The court accepted the Mbeere sub-county land surveyor's report as that of an independent expert, finding no evidence of bias or interest. The Plaintiffs' private surveyor's report was general, covered about 22 other parcels beyond the suit property, and failed to identify specific developments on parcel 1945. The 3rd Plaintiff's testimony was contradicted by the surveyor's findings, and the Defendant's and DW2's evidence that the land was used only for grazing was not shaken on cross-examination.

p. 2
02

Whether the Plaintiffs were entitled to be registered as proprietors of 0.5 acres by adverse possession

Holding

No; the claim failed on a balance of probabilities and the originating summons was dismissed with costs

Reasoning

Having found that the Plaintiffs failed to establish exclusive and continuous possession for at least 12 years, the court held it unnecessary to consider the other elements of adverse possession. The issue of whether the suit property was a subdivision of parcel 1571 ceased to be live since no exclusive possession of any land belonging to the Defendant was demonstrated.

p. 3

Legal principles established

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  • A claimant seeking title by adverse possession must prove exclusive, open and uninterrupted possession of the land for 12 years, and possession may be acquired for part of the land
  • The burden of proving adverse possession is on the claimant on a balance of probabilities

Court orders

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  1. 1.The Plaintiffs' originating summons dated 7th May 2010 is dismissed
  2. 2.Costs to the Defendant

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Registered Lands Act

Cases cited (5)

  • 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
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap. 22)

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, "Joachim Njuguna Mbugua & 2 others v Jenesio Mugo [2019] KEELC 607 (KLR)", Case Analysis (2019). E.L.C. Case No. 50 of 2015 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/607/eng@2019-11-28

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