Mkeli Munyia Kioko v Anthony Ndii & 2 others [2019] KEELC 619 (KLR)
The bottom line
#A Kenyan court transferred two land parcels to a woman who occupied them openly for decades, but rejected her claim over land she only grazed livestock on.
What this practically means
#Executive summary
#Key legal issues
#Elements of adverse possession
The Plaintiff proved exclusive, open, hostile and uninterrupted possession of parcels 166 and 167 for over 12 years from 1976, extinguishing the 1st and 2nd Defendants' titles
The court applied the test in Kasuve v Mwaani Investments Ltd requiring exclusive, open possession as of right without interruption for 12 years. The Plaintiff and her family resided and cultivated parcels 166 and 167 to the exclusion of the registered owners, who had never occupied or cultivated them. Entry was without consent, satisfying hostility, and there was no force or secrecy. Time ran from first registration in 1976, so the 12-year period lapsed in 1988, well before suit was filed in 2013.
Interruption of possession by prior litigation
Prior suits between the Nditi and Murugu clans did not interrupt the Plaintiff's possession as they did not concern parcels 166 and 167 and no eviction proceedings were taken against her
Relying on Githu v Ndeete, time ceases to run only when the owner asserts his right by legal proceedings or effective entry. The proceedings in Embu HCCC No. 97 of 2005 concerned other parcels and did not include parcels 166 and 167, and there was no evidence of eviction proceedings against the Plaintiff. The prior litigation therefore did not stop time from running against the 1st and 2nd Defendants.
Scope of an adverse possession originating summons
The only matter for determination in such a summons is adverse possession; allegations of fraud or illegality in the acquisition of title are not cognizable in it
The Plaintiff had alleged that the Defendants may have obtained their titles unlawfully or fraudulently. Following Wasui v Musumba, the court held that the only legitimate question in an originating summons under Section 38 is adverse possession. The claim was solely for adverse possession, and in any event no cogent evidence of fraud had been tendered, so nothing turned on that aspect.
Possession of parcel 242 by grazing
The claim against the 3rd Defendant failed because grazing does not amount to exclusive possession
The court found that the Plaintiff's use of parcel 242 was limited to grazing, which is transient and does not dispossess the true owner. There was no evidence that the Plaintiff had fenced off the parcel for her exclusive use, so the element of exclusive possession required for adverse possession was not established as against the 3rd Defendant.
Legal principles established
#- Time under the Limitation of Actions Act cannot run before registration of title; it is computed from the date of first registration
- The mere existence of civil proceedings between clans does not necessarily amount to interruption of possession for purposes of adverse possession
- Grazing on land is transient and does not constitute the exclusive possession needed for adverse possession
Court orders
#- 1.The 1st and 2nd Defendants' titles to Title Nos. Mbeti/Gachuriri/167 and 166 respectively extinguished on account of adverse possession
- 2.The Plaintiff is entitled to be registered as proprietor of Title Nos. Mbeti/Gachuriri/167 and 166 in place of the 1st and 2nd Defendants
- 3.The Land Registrar Mbeere shall cause the Plaintiff to be registered as proprietor of Title Nos. Mbeti/Gachuriri/167 and 166 and title deeds issued to her
- 4.The Land Registrar Mbeere shall dispense with the production of the original title deeds for the said parcels for the purpose of effecting the decree
- 5.The Plaintiff's claim for Title No. Mbeti/Gachuriri/242 as against the 3rd Defendant is dismissed
- 6.Each party shall bear his own costs
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (Cap. 22) and Order 37 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mkeli Munyia Kioko v Anthony Ndii & 2 others [2019] KEELC 619 (KLR)", Case Analysis (2019). E.L.C. Case No. 38 of 2015 (O.S.), formerly Kerugoya HC ELC No. 803 of 2013 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/619/eng@2019-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.