Grace Wairimu Githinji & 3 others v Karau Ole Shonge & another [2019] KEELC 1425 (KLR)
The bottom line
#A Kenyan court ruled that a family who openly occupied land for over 12 years legally owned it, even though someone else held the title deeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants acquired the suit lands by adverse possession
Yes; they occupied openly, notoriously and peacefully from 1968/1978, and time ran from about 1980, so the Respondents' titles were extinguished by 1992
The Applicants' father purchased the land in 1968 and the family remained in continuous occupation. Criminal proceedings of 1978 confirmed their presence on the land. The Defendants produced no notices to vacate except 2016 minutes, and no witness from the administration testified. Time ran from continued occupation after the 1980 judgments; twelve years elapsed by 1992, extinguishing the Respondents' titles, which were then held in trust for the Applicants. The charging of a title as loan security did not defeat the claim.
Whether the suit was fatally defective for failure to attach certified copies of titles
No; the requirement was procedural and cured under Article 159(2)(d) of the Constitution
The 2nd Respondent argued the suit was a non-starter for want of certified copies of titles. The court noted Certificates of Official Searches were filed in court as part of the Applicants' bundle, and held that failure to annex them to the affidavit could not defeat the suit, invoking Article 159(2)(d) that justice be dispensed without undue regard to procedural technicalities.
Whether the 1st Defendant was entitled to damages, vacant possession and cancellation of titles
No; he proved neither damages nor ownership inconsistent with the Applicants' possession
The 1st Defendant counterclaimed for general and special damages, vacant possession and cancellation of titles, but tendered no evidence of damages and failed to furnish the latest Certificate of Official Search. He also denied owning the land, which the court viewed as an attempt to defeat the Applicants' claim. Since adverse possession was proved, his counterclaim failed entirely.
Legal principles established
#- Time for adverse possession runs from continued occupation after determination of a lawsuit confirming the claimant's entitlement
- Possession must be open, peaceful and without force, secrecy or evasion
- Upon extinguishment of title by limitation, the registered owner holds the land in trust for the adverse possessor
- Failure to annex certificates of official searches to an affidavit is a procedural technicality curable under Article 159(2)(d)
Court orders
#- 1.The Applicants/Plaintiffs declared owners of parcels of land known as ENKARIAK/RONGENA/667 and ENKARIAK/RONGENA/668 having acquired the same by way of adverse possession
- 2.The Registrar of Lands Kajiado directed to transfer Land Reference Numbers ENKARIAK/RONGENA/667 and ENKARIAK/RONGENA/668 from the 1st and 2nd Defendants to the Applicants/Plaintiffs
- 3.Costs of the suit awarded to the Applicants/Plaintiffs
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (Cap 22); Article 159(2)(d) of the Constitution invoked on procedural technicalities
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Wairimu Githinji & 3 others v Karau Ole Shonge & another [2019] KEELC 1425 (KLR)", Case Analysis (2019). ELC Case No. 791 of 2017 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1425/eng@2019-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.