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ELCAllowedELC Case No 16 of 2017 (O.S) (formerly Nakuru ELC Case No 27 of 2012 (O.S))· [2019] KEELC 2072 (KLR)

Ahmed Abdi Murasa v Zakaria Njenga Kamiti & another [2019] KEELC 2072 (KLR)

Environment and Land Court
19 July 2019
3,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a family land title after decades of occupation, ruling that an eviction not ordered by a court cannot defeat an adverse possession claim.

What this practically means

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Executive summary

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The plaintiff moved the Environment and Land Court at Narok by Originating Summons seeking a declaration that he had acquired title to LR Narok/Township/163 by adverse possession as against the 1st Defendant, the registered proprietor, and that the 1st Defendant's rights had been extinguished under the Limitation of Actions Act (Cap 22). He claimed occupation through his father from 1936 under a colonial trading allocation, and by himself thereafter. The 1st Defendant asserted lawful allocation by the Narok County Council in 1983, registration in 1985, payment of rates, and a lawful sale to the 2nd Defendant in 2012 for KES 10 million; the 2nd Defendant claimed he bought for value after due diligence and found no caution on the register. The court framed two issues: capacity to sue and whether adverse possession was proved. On capacity, although the plaintiff admitted he had no letters of administration or authority from his siblings, the court held the defendants had not raised the objection timeously and the 1st Defendant knew the plaintiff was the occupier, having sued him previously. On the merits, the court found the plaintiff's occupation since 1964 was not controverted and that the 1st Defendant's eviction was not court-sanctioned, hence not a lawful interruption of possession. The court declared the plaintiff had acquired title by adverse possession, that the 1st Defendant had no title to pass, that the allocation and registration were illegal, and ordered rectification of the register in the plaintiff's name, with an alternative order that the developed land's value be paid to the plaintiff by the 2nd Defendant. No costs order appears in the judgment.

Key legal issues

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01

Capacity to sue without letters of administration

Holding

The Plaintiff had capacity to sue; the defendants never raised the issue at the earliest opportunity and the 1st Defendant knew the Plaintiff was the person in occupation

Reasoning

The plaintiff admitted he had not taken out letters of administration for his late father's estate and had no authority from his siblings. However, the defendants did not raise the issue of capacity from filing of the suit in 2012 until submissions. Further, the 1st Defendant had previously sued the plaintiff personally, showing knowledge that he was the occupier. The court therefore found capacity established.

p. 4
02

Whether adverse possession was established

Holding

Yes; the Plaintiff and his family were in continuous occupation from 1964 and the 1st Defendant's eviction was not court-sanctioned, so the ingredients of adverse possession were proved

Reasoning

The court found the plaintiff entered the land in 1964 and constructed houses, and the testimony of his witnesses was not controverted. Although the 1st Defendant acquired title and attempted to evict, that eviction was not sanctioned by court and therefore was not a lawful interruption of possession. The court held the plaintiff had discharged the burden of proof and proved the ingredients of adverse possession.

p. 4
03

Effect of the 1st Defendant's title and sale to the 2nd Defendant

Holding

The 1st Defendant's allocation and registration were illegal and he had no title to pass to the 2nd Defendant; alternatively the 2nd Defendant must pay the land's value given his developments

Reasoning

Having found adverse possession extinguished the 1st Defendant's rights, the court declared his allocation and registration illegal and ordered rectification of the register in the plaintiff's name. Recognising the 2nd Defendant's substantial development after purchasing for KES 10 million, the court gave an alternative order that the 2nd Defendant pay the plaintiff the value of the land at the time of transfer in the interest of justice.

p. 4

Legal principles established

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  • A plaintiff claiming adverse possession must prove continuous, open and uninterrupted occupation for at least 12 years
  • Possession cannot be interrupted except by lawful means; an eviction not sanctioned by court does not defeat an adverse possession claim

Court orders

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  1. 1.Declaration that the Plaintiff had acquired title to Land Parcel No. LR NAROK/TOWNSHIP/163 by adverse possession
  2. 2.Declaration that the 1st Defendant had no title or rights to sell and transfer the suit land to the 2nd Defendant
  3. 3.That the allocation and registration of the suit land to the 1st Defendant was illegal and unlawful, with rectification of the register in the name of the Plaintiff
  4. 4.In the alternative, since the 2nd Defendant has developed the suit land, that the 2nd Defendant pay the Plaintiff the value of the suit land at the time it was sold and transferred to him

Authorities

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Legislation

  • Limitation of Actions ActCap 22
  • Land Registration Act2012
Jurisdiction invoked
Originating Summons under the Limitation of Actions Act (Cap 22) and the Land Registration Act, 2012

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, "Ahmed Abdi Murasa v Zakaria Njenga Kamiti & another [2019] KEELC 2072 (KLR)", Case Analysis (2019). ELC Case No 16 of 2017 (O.S) (formerly Nakuru ELC Case No 27 of 2012 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2072/eng@2019-07-19

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