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ELCPartially AllowedELC Case No. 256 of 2017 (Formerly Nairobi HCCC No. 965 of 2004)· [2019] KEELC 1218 (KLR)

David Mungai & 5 others (Suing as the Registered Trustees of Apostolic Faith Church v Jane Nyambura Joshua [2019] KEELC 1218 (KLR)

Environment and Land Court
23 October 2019
4,201 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court ordered a woman who lived on church land with permission to vacate within 90 days, rejecting her claim that long occupation made the land hers.

What this practically means

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Executive summary

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The registered trustees of the Apostolic Faith Church, registered proprietors of NGONG/NGONG/406 under a Certificate of Lease dated 27th October 1982, sued the Defendant, widow of the Church's founding pastor, for eviction, an injunction, mesne profits and general damages. The Defendant counterclaimed for declarations that she had acquired ownership of the portion she occupied (claimed as 180ft by 300ft) by adverse possession or, alternatively, by irrevocable agreement or gift, and for an order compelling subdivision and transfer. The Court found the Defendant's husband had been permitted to reside on the premises upon retirement (letters of 11th January and 20th March 1978) and that after his death the agreement of 5th January 1992, executed before elders, allowed the Defendant to occupy the house and use land parallel to it, with neither party interfering with the other. No measurements were specified, no surveyor's report was produced, and no permission existed for rental houses or a storeyed building. The Court held that adverse possession could not arise because occupation was permissive, time runs from registration and knowledge of the owner, and the Defendant's 1997 adverse possession suit (struck out in May 2004) and the filing of this suit in 2004 meant 12 years had not elapsed. Her occupation was also not peaceful given pending litigation and administrative interventions. The counterclaim was dismissed. The Plaintiff was granted vacant possession within 90 days and a perpetual injunction, but mesne profits and general damages were refused for want of evidence and the permissive nature of occupation. Costs were awarded to the Plaintiff.

Key legal issues

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01

Whether the Defendant acquired the portion she occupies by adverse possession

Holding

No - occupation was permissive, and time had not run for the statutory 12 years

Reasoning

The Court found the Defendant's entry and continued occupation were with permission - the husband was allowed to reside on the premises in 1978 and the Defendant under the agreement of 5th January 1992. Permissive occupation defeats animus possidendi. Further, the Defendant filed a suit for adverse possession in 1997 (Nairobi HCCC No. 2824 of 1997) which was struck out in May 2004, and this suit was filed in 2004, so 12 years had not lapsed. Her occupation was also not peaceful given the pending suits and interventions by elders and the administration.

p. 4
02

Whether the Plaintiff is entitled to vacant possession and eviction of the Defendant

Holding

Yes - the Plaintiff proved ownership by Certificate of Lease dated 27th October 1982 and the Defendant's occupation exceeded the terms agreed

Reasoning

The Plaintiff produced a Certificate of Lease and correspondence showing the Defendant was permitted to occupy the house and land parallel to it, but no permission was granted to construct rental houses or a storeyed building or to expand occupation. The Defendant could not dictate the portion she was to occupy. Reliance was placed on Wamwea v Catholic Diocese of Muranga Registered Trustees for vacant possession.

p. 3
03

Whether the Defendant was entitled to a declaration of ownership by irrevocable agreement or gift and an order for subdivision and transfer

Holding

No - the 5th January 1992 agreement and correspondence specified no measurements and the Defendant declined the ¼ acre offered

Reasoning

The Court found no indication in the agreement or correspondence of the size of the portion to be allocated, no surveyor's report was produced, and a court cannot rewrite or interpret an agreement for the parties. Since the Defendant declined the offered ¼ acre and the Plaintiff did not confirm the offer still stood, the counterclaim failed.

p. 4
04

Whether the Plaintiff was entitled to mesne profits and general damages

Holding

No - no evidence was adduced and occupation was permissive

Reasoning

The Plaintiff produced no evidence quantifying mesne profits or loss, and because the Defendant resided on the suit land with the Plaintiff's permission, the claim could not succeed.

p. 3

Legal principles established

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  • A party should not be allowed to retain a position of advantage obtained through unlawful acts
  • Time in adverse possession runs from registration of the owner and from possession with the owner's knowledge, not permissive occupation
  • Occupation under permission cannot found a claim of adverse possession; a court cannot interpret an agreement for the parties

Court orders

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  1. 1.The Defendant to grant vacant possession of the portion of the land she occupies on NGONG/NGONG/406 within 90 days from the date hereof, failure of which the Plaintiff will be at liberty to evict her therefrom
  2. 2.The Defendant, her agents and servants restrained from entering into or otherwise interfering with the Plaintiff's quiet enjoyment of land parcel number NGONG/NGONG/406 after the period of 90 days
  3. 3.The costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 13
  • Limitation of Actions Actsection 17
  • Limitation of Actions Actsection 37
  • Limitation of Actions Actsection 38(1) and (2)

Cases cited (13)

  • Kamau Muchua v Ripples Limited
    CA Civil Appeal No. 106 of 1992
  • Wamwea v Catholic Diocese of Muranga Registered Trustees
    (2003) KLR 389
  • Robert Otieno Agok v Paskal Oor
    (2019) eKLR
  • Mtana Lewa v Kahindi Ngala Mwagandi
    (2015) eKLR
  • Ramco Investments Limited v Drive In Theatre Limited
    (2014) eKLR
  • Titus Mutuku Kasuve v Mwaani Investment Ltd & 4 Others
    (2004) eKLR
  • Samuel Katana Nzunga & 102 Others v Salim Abdalla Bakshwein & Another
    (2013) eKLR
  • Samuel Miki Waweru v Jane Njeri Richu
    CA No. 122 of 2011 (UR)
  • Kweyu v Omutut
    (1990) KLR 709
  • Wambugu v Njuguna
    (1983) KLR 173
  • Haro Yonda Juaje v Sadaka Dzengo Mbauro & Another
    (2014) eKLR
  • Wines & Spirits Kenya Limited & another v George Mwachiru Mwango
    [2018] eKLR
  • Kimani Ruchine & Another v Swift Rutherford & Co. Ltd
    (1980)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel NGONG/NGONG/406 (transferred from Nairobi HCCC No. 965 of 2004)

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, "David Mungai & 5 others (Suing as the Registered Trustees of Apostolic Faith Church v Jane Nyambura Joshua [2019] KEELC 1218 (KLR)", Case Analysis (2019). ELC Case No. 256 of 2017 (Formerly Nairobi HCCC No. 965 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1218/eng@2019-10-23

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