Ali Nyasiri Juma (suing in his capacity as the legal and personal representative of the estate of the late John Juma Musungu – Dcd.) v Gladys Muka Mango (being sued as the legal and personal representative of the estate of the late Mango Muka [2019] KEELC 1688 (KLR)
The bottom line
#The court struck out an adverse possession claim because the plaintiff failed to sue a joint registered co-owner of the land.
What this practically means
#Executive summary
#Key legal issues
#Indefeasibility of title under the Land Registration Act
Registration vests absolute ownership, challengeable only on fraud/misrepresentation to which the proprietor is party or where title was acquired illegally, unprocedurally or through a corrupt scheme
The court set out sections 24(a) and 26(1) of the Land Registration Act, citing Elijah Makeri Nyangw'ra to confirm that even title in innocent hands may be impugned if obtained illegally, unprocedurally or through a corrupt scheme. However, the court did not reach the merits on this question due to the non-joinder finding.
Non-joinder of a joint registered proprietor
The suit was struck out because BMM, joint proprietor of the suit land, was never enjoined despite being a necessary party
The green card and search certificate showed the defendant and BMM registered as joint proprietors since 16 February 2012, before the suit was filed. Although Order 1 rules 9 and 10 of the Civil Procedure Rules provide that misjoinder or non-joinder shall not defeat a suit, and Article 159(2)(d) abhors procedural technicalities, the court held this technicality went to the substance, distinguishing the plaintiff's authorities since the pleadings were never amended to join BMM.
Principles of adverse possession
The claimant must prove dispossession or discontinuance of possession by the owner for the statutory period, and possession that is open, continuous and without force, secrecy or permission
The court adopted the Wambugu v Njuguna principles as quoted in Gerald Muriithi v Wamugunda Muriuki, and Kimani Ruchire v Swift Rutherfords, noting possession must not be broken and the owner must have knowledge of the occupation. These principles were not applied to the merits because the court found non-joinder dispositive.
Legal principles established
#- A suit cannot be determined so as to affect a co-owner of the suit land who has not been joined and heard; non-joinder of a joint proprietor on a claim of adverse possession goes to the substance of the case
- A claimant seeking adverse possession under a purchase agreement must prove occupation for at least 12 years after payment of the last instalment of the purchase price
- Possession must be as of right, nec vi, nec clam, nec precario
Court orders
#- 1.The suit is struck out by reason of non-joinder of one of the proprietors of the suit land
- 2.No orders as to costs
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act over claims of adverse possession to land; Limitation of Actions Act (Cap 22) sections 7, 17, 37 and 38 invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali Nyasiri Juma (suing in his capacity as the legal and personal representative of the estate of the late John Juma Musungu – Dcd.) v Gladys Muka Mango (being sued as the legal and personal representative of the estate of the late Mango Muka [2019] KEELC 1688 (KLR)", Case Analysis (2019). ELC Case No. 551 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1688/eng@2019-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.