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ELCPartially AllowedELC Case No. 38 of 2019· [2019] KEELC 634 (KLR)

Milton Abil Juma v Kurushem Murunga & another [2019] KEELC 634 (KLR)

Environment and Land Court
28 November 2019
NMN.A. Matheka
2,136 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court gave a man who lived on land since 1975 ownership rights, despite the family holding a title deed.

What this practically means

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Executive summary

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This was a consolidated dispute before the Environment and Land Court at Kakamega arising from Kakamega High Court Civil Suit No. 14 of 2009 (plaintiff's adverse possession claim) and Civil Suit No. 12 of 2009 (defendants' suit for eviction, consolidated by consent with the plaint standing as a counterclaim). The land in question derives from LR Kakamega/Shamberere/632, transmitted through succession to the 1st defendant, administrator of the estate of Petro Murunga, becoming parcels 2879 and 2880. The plaintiff claimed he entered the land in 1975, purchased it from the deceased father, and had been in open, continuous and exclusive occupation since, defeating the defendants' claim under the Limitation of Actions Act. The defendants asserted registered title obtained in 2007 through succession, alleging the plaintiff trespassed in 2003 on less than half an acre, destroyed the boundary, and registered a caution in 2008; they counterclaimed for eviction, injunction and removal of the caution. The court reviewed section 24(a) and 26(1) of the Land Registration Act on indefeasibility of title and the classic adverse possession principles from Wambugu v Njuguna, Kimani Ruchire v Swift Rutherfords and related authorities. Finding, on the testimony of the plaintiff corroborated by a senior chief and evidence of development of the land, that the plaintiff had occupied since 1975 - over 12 years - in open, continuous and exclusive possession, the court declared him owner of Kakamega/Shamberere/2879 by adverse possession, ordered transfer within 30 days, with the Deputy Registrar to execute documents in default. The counterclaim was dismissed. No orders as to costs were made.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession

Holding

Yes - the plaintiff was found to have been in exclusive, continuous and uninterrupted possession from 1975, exceeding 12 years

Reasoning

The plaintiff entered the suit land in 1975, purchased it from the defendants' deceased father Petro Murunga, developed it with houses, crops and trees, and corroborated by PW2 a senior chief. The defendants never used the portion. DW2 claimed the plaintiff only moved in 2003, but the court preferred the plaintiff's evidence of occupation since 1975 and found possession continuous and unbroken for over 12 years, satisfying the Limitation of Actions Act requirements.

p. 3
02

Whether the defendants' counterclaim for eviction, injunction and removal of caution should succeed

Holding

Dismissed - defendants failed to prove the counterclaim on a balance of probabilities

Reasoning

The defendants relied on registered title obtained through succession in 2007, asserting the plaintiff trespassed in 2003. However, the court found as a fact that the plaintiff had occupied and used the land since 1975 and that the defendants and their father had never used the portion. Their claim of trespass and forceful dispossession by the plaintiff could not stand against that finding of long occupation.

p. 3

Legal principles established

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  • Registration vests absolute ownership of land in the registered proprietor
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or illegal, unprocedural or corrupt acquisition
  • Adverse possession requires proof of dispossession or discontinuance of possession by the title holder for the statutory period of 12 years
  • Possession claimed must be as of right - nec vi, nec clam, nec precario

Court orders

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  1. 1.Declared the plaintiff/applicant the owner of Kakamega/Shamberere/2879 by virtue of adverse possession, with defendants to transfer the said portion of land within 30 days of the judgment
  2. 2.In default of voluntary transfer, the Deputy Registrar of the Court authorized to execute all documents necessary to effect the subdivision and transfer of the portion to the plaintiff
  3. 3.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActCap 22 Laws of Kenya
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)

Cases cited (5)

  • Elijah Makeri Nyangw'ra vs Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
  • Francis Gicharu Kariri v Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire v Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
Jurisdiction invoked
Environment and Land Court jurisdiction over land title and adverse possession claims (consolidated suits transferred to ELC)

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, "Milton Abil Juma v Kurushem Murunga & another [2019] KEELC 634 (KLR)", Case Analysis (2019). ELC Case No. 38 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/634/eng@2019-11-28

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