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ELCPartially AllowedOriginating Summons (unnumbered in judgment as provided)· [2019] KEELC 1548 (KLR)

Nelson Njoroge Githina v Joreth Limited & another [2019] KEELC 1548 (KLR)

Environment and Land Court
26 August 2019
EOE. O. Obaga
2,220 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 declared a man who occupied land since 1979 its owner, ruling that selling the land to someone else cannot interrupt adverse possession.

What this practically means

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Executive summary

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The Plaintiff, a shareholder of Thome Farmers No. 5 Limited, filed an Originating Summons seeking a declaration that he had acquired by adverse possession Plot No. 176 (later LR 13330/593), cancellation of the registration of Joreth Limited and Acco Limited as proprietors, and rectification of the register in his favour. He purchased a share in 1975, was settled on a half-acre plot in 1979, fenced it, cultivated it and later leased it to a garage operator, receiving a vacate letter only in July 2012 after the property had been transferred to the 2nd Defendant. The 1st Defendant denied any relationship with Thome 5, asserting possession was interrupted by its 1992 suit against occupants; the 2nd Defendant pleaded innocent purchaser status, having bought the property for Kshs. 1,800,000 and obtained registration in May 2012. The court framed two issues: when the Plaintiff took possession and whether his occupation was open and uninterrupted. It found possession commenced in 1979, uncontroversially established by surveyors' correspondence and the absence of rebuttal evidence. Twelve years elapsed by 1991, extinguishing the 1st Defendant's title; the 1992 suit could not interrupt time already run. Applying Githu v Ndeete, the 2012 transfer did not interrupt adverse possession, and the user of the land as a garage was immaterial. The suit was allowed: the Plaintiff was declared owner by adverse possession, Acco Limited's registration was cancelled, the register was to be rectified in his favour, and the 1st Defendant was ordered to pay costs.

Key legal issues

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01

Date of taking possession

Holding

The Plaintiff took possession of the suit property in 1979, and the 1st Defendant led no evidence to controvert this.

Reasoning

The Plaintiff bought a share in Thome 5 in 1975, was shown his portion by the surveyor Kamwere and took possession in 1979. Kamwere & Associates had confirmed 500 plots subdivided on the ground and were paid survey fees in December 1979 from Thome 5 funds, disproving the submission that subdivision had not occurred by then. In the absence of contrary evidence, the court found possession commenced in 1979.

p. 2
02

Open, continuous and uninterrupted adverse occupation

Holding

The Plaintiff's occupation was open, continuous and adverse; twelve years elapsed by 1991, extinguishing the 1st Defendant's title, and the 1992 suit did not interrupt time already run.

Reasoning

The Plaintiff entered without the 1st Defendant's permission, fenced the plot, cultivated it and later leased it to a garage operator. The land adjoins Thika Super Highway, so the owner could not deny knowledge. Even if Thome 5 was joined in the 1992 suit, twelve years had already lapsed by 1991, so title was extinguished before any assertion of rights.

p. 3
03

Effect of subsequent transfer to the 2nd Defendant

Holding

The 2012 transfer to Acco Limited was of no effect against a title already extinguished by adverse possession.

Reasoning

Relying on Githu v Ndeete, a change of ownership does not interrupt adverse possession. Here the transfer occurred long after the 1st Defendant's title had been extinguished in 1991, so the 2nd Defendant acquired no effective title capable of defeating the Plaintiff's accrued rights.

p. 3

Legal principles established

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  • Mere change of ownership of land occupied by a person in adverse possession does not interrupt that adverse possession.
  • Time under the Limitation of Actions Act ceases to run when the owner asserts his rights or the right is admitted by the adverse possessor, by legal proceedings or effective entry.
  • The purpose for which occupied land is used is immaterial to a claim of adverse possession.

Court orders

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  1. 1.Nelson Njoroge Githina be and is hereby declared to have acquired LR 13330/593 by adverse possession
  2. 2.The registration of Acco Limited as proprietor of LR 13330/593 is hereby cancelled and the Land Registrar is directed to rectify the register and enter the name of Nelson Njoroge Githina as proprietor of LR 13330/593
  3. 3.The costs of this suit shall be paid to the Plaintiff by the 1st Defendant

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, "Nelson Njoroge Githina v Joreth Limited & another [2019] KEELC 1548 (KLR)", Case Analysis (2019). Originating Summons (unnumbered in judgment as provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1548/eng@2019-08-26

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