David Mungai & 5 others (Suing as the Registered Trustees of Apostolic Faith Church v Jane Nyambura Joshua [2019] KEELC 1218 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Defendant acquired the portion she occupies by adverse possession
No - occupation was permissive, and time had not run for the statutory 12 years
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.
Whether the Plaintiff is entitled to vacant possession and eviction of the Defendant
Yes - the Plaintiff proved ownership by Certificate of Lease dated 27th October 1982 and the Defendant's occupation exceeded the terms agreed
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.
Whether the Defendant was entitled to a declaration of ownership by irrevocable agreement or gift and an order for subdivision and transfer
No - the 5th January 1992 agreement and correspondence specified no measurements and the Defendant declined the ¼ acre offered
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.
Whether the Plaintiff was entitled to mesne profits and general damages
No - no evidence was adduced and occupation was permissive
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.
Legal principles established
#- 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
#- 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.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.The costs of the suit awarded to the Plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.