Mwene Munda Welfare Association v Kitui County Government & 2 others [2019] KEELC 1615 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled you cannot claim land owned by a county government through adverse possession, dismissing the group's injunction bid with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff could acquire the suit land (trust land held by the 1st Defendant) by adverse possession
No. Section 41 of the Limitation of Actions Act excludes land vested in county councils, and by extension county governments, from adverse possession claims; further, unregistered trust land is outside Sections 37 and 38.
The suit land was set apart under the Trust Land Act and, the lease to Katoteni Ranching Society having lapsed in 1987, reverted to the County Council and became unregistered community land held in trust by the County Government under Article 63 of the Constitution. Section 41 excludes land vested in a county council from the Act, so the reliefs of adverse possession are unavailable. The land is also not registered under the Acts cited in Section 37, rendering the claim a non-starter.
Whether the Plaintiff established a prima facie case for interlocutory injunction
No. Having failed on the adverse possession claim, no prima facie case with chances of success was established and the Motion was dismissed.
Applying the established interlocutory principles, the Plaintiff had to show a prima facie case with a probability of success. Counsel did not address whether adverse possession could succeed against the 1st Defendant, and the court's analysis of Sections 37, 38 and 41 of the Limitation of Actions Act showed the claim could not succeed. That ground alone justified dismissal of the application with costs.
Legal principles established
#- A claim for adverse possession cannot be sustained against land vested in a County Council or, by extension, a County Government, by virtue of Section 41 of the Limitation of Actions Act.
- A claim for adverse possession is a non-starter where the land is not registered under any of the registration statutes referred to in Section 37 of the Limitation of Actions Act.
Court orders
#- 1.The Notice of Motion dated 17th October, 2018 is dismissed
- 2.The Plaintiff to pay costs of the application
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land claims (originating summons under Section 38(1) of the Limitation of Actions Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwene Munda Welfare Association v Kitui County Government & 2 others [2019] KEELC 1615 (KLR)", Case Analysis (2019). Originating Summons dated 17th October, 2018 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1615/eng@2019-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.