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ELCDismissedOriginating Summons dated 1st November 2013· [2019] KEELC 1563 (KLR)

Moses Warui Gatimu v Douglas Mwai Machuru & another [2019] KEELC 1563 (KLR)

Environment and Land Court
20 September 2019
ECE.C. Cherono
1,211 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 dismissed a 31-year adverse possession claim because the man entered the land with the owner's consent through a sale agreement.

What this practically means

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Executive summary

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The plaintiff filed an Originating Summons dated 1st November 2013 seeking a declaration that he had acquired title by adverse possession to 1.40 Ha (3 ½ acres) excised from L.R. MWERUA/BARICHO/1634 and 1635, resultant subdivisions of the original L.R. MWERUA/BARICHO/224, and orders that the portion be excised and registered in his name. He testified that his late father, Josiah Gatimu Migwi, bought the portion from the 1st defendant in 1982 under a sale agreement, that the portion was excised on the ground though paperwork was incomplete, and that he entered the land in 1982 and cultivated bananas, maize, beans and trees for 31 years. The 1st defendant denied the sale agreement, asserting instead a verbal lease of one acre for 1981 to 1985, and stated he subdivided the land in September 2013 and sold parcel 1635 to the 2nd defendant. The court applied the principles in Mistry Valji v Janendra Raichand, holding that adverse possession is unavailable where entry and occupation are consensual or based on agreement. Since the plaintiff's entry derived from his father's agreement with the 1st defendant, his occupation was by consent. Further, the plaintiff produced no letters of administration for his father's estate and could not enforce the deceased's contract. The suit was dismissed with costs.

Key legal issues

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01

Whether entry and occupation under a sale/lease agreement defeats an adverse possession claim

Holding

Yes - entry by consent of the owner bars adverse possession

Reasoning

The plaintiff's late father entered the suit property under a sale agreement with the 1st defendant and thereafter invited the plaintiff into possession. Because the entry and occupation were lawful and consensual, the occupation was not adverse to the registered owner. The Court of Appeal principles require occupation to be nec vi, nec clam, nec precario and unavailable where entry was permissive.

p. 2
02

Whether the plaintiff could rely on and enforce his late father's sale agreement

Holding

No - without letters of administration he could not enforce the contract or claim through it

Reasoning

The plaintiff's own testimony founded his entry on the sale transaction between his late father and the 1st defendant. The court held it was incumbent on the plaintiff to obtain letters of administration; none were produced, so he could not enforce the deceased's contract nor claim as of his own right.

p. 2

Legal principles established

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  • Adverse possession is not available to a party who entered the registered owner's land with consent or under an agreement
  • A plaintiff cannot enforce a contract entered into by a deceased person without taking out letters of administration

Court orders

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  1. 1.The suit is dismissed with costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38

Cases cited (1)

  • MISTRY VALJI VS JANENDRA RAICHAND & 2 OTHERS
    C.A No. 46 of 2015, (2016) e K.L.R
Jurisdiction invoked
Environment and Land Court jurisdiction over adverse possession claims; claim founded on Section 38 of the Limitation of Actions Act Cap 22 Laws of Kenya

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, "Moses Warui Gatimu v Douglas Mwai Machuru & another [2019] KEELC 1563 (KLR)", Case Analysis (2019). Originating Summons dated 1st November 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1563/eng@2019-09-20

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