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ELCDismissedEldoret ELC No. 434 of 2015 (OS) (consolidated with Eldoret ELC No. 248 of 2013)· [2019] KEELC 2269 (KLR)

Mary Njoki Muya v Francis Musundi Omari & another [2019] KEELC 2269 (KLR)

Environment and Land Court
11 July 2019
AOA. Ombwayo
3,794 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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An Eldoret woman who lived on land for decades lost her adverse possession claim because the land was still government property for most of that time.

What this practically means

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Executive summary

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Two suits concerning Eldoret Municipality Block 14/1402 were consolidated: an originating summons by Mary Njoki Muya claiming ownership by adverse possession, and a plaint by Francis Omusundi Omari as registered proprietor. The plaintiff claimed she bought the land from one Paul Kemboi in 1976, entered it in 1986, constructed houses, and had been in open, peaceful and uninterrupted occupation for over 12 years, extinguishing the respondents' rights under sections 7 and 13 of the Limitation of Actions Act. The 1st defendant, who bought the land from the 2nd defendant, Mary Wanjiru Githatu, in 2013 and was registered on 3.3.2015, sought eviction, a permanent injunction and mesne profits. The 2nd defendant contended the register opened in 1983 as government land, that she acquired the property in 2011, and that the plaintiff's occupation was not peaceful. The court visited the land and found the plaintiff in actual possession. However, the court held that under section 41 of the Limitation of Actions Act, time for adverse possession cannot run against the Government; the land remained government land until the certificate of lease was issued to the 2nd defendant on 1.11.2011, so the period from 1983 to 2011 could not be counted. The 12-year period had not elapsed by 10.12.2015 when the suit was filed. The court further held that the 1st defendant's registered title under sections 24, 25 and 26 of the Land Registration Act was absolute and indefeasible. The plaintiff's claim was dismissed, she was ordered to vacate within 60 days failing which she would be evicted, and to pay the costs of the suit.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession

Holding

The claim failed; the plaintiff did not establish adverse possession because the land remained government land until 1.11.2011, and limitation does not run against the government

Reasoning

The register was opened on 1.4.1983 with the property as government land, but the certificate of lease was only issued to the 2nd defendant on 1.11.2011. Under section 41 of the Limitation of Actions Act, title cannot be acquired by adverse possession to government land, so the period between 1983 and 1.11.2011 is excluded. Time against the registered proprietor began on 1.11.2011, and the originating summons filed on 10.12.2015 was far short of 12 years.

p. 4
02

Whether the 1st defendant, as registered proprietor, is entitled to the suit land and to evict the plaintiff

Holding

Yes; registration vests absolute ownership and the certificate of title is prima facie evidence of indefeasible ownership

Reasoning

Relying on sections 24, 25 and 26 of the Land Registration Act, the court held that the 1st defendant, registered on 3.3.2015, is the absolute and indefeasible owner, subject only to fraud, misrepresentation, illegality or unprocedural acquisition, none of which was established. The plaintiff's occupation was therefore unlawful and eviction was ordered.

p. 5

Legal principles established

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  • Time for adverse possession does not run against the Government; a period during which land remains government land cannot be computed towards adverse possession
  • In a government leasehold, time for adverse possession starts running when the lease is registered and the certificate of lease is issued
  • An action to recover land may not be brought after twelve years from when the right of action accrued

Court orders

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  1. 1.The plaintiff to vacate the suit land within 60 days of the judgment, failure of which she be forcefully evicted
  2. 2.The plaintiff to pay costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13(1), (2), (3)
  • Limitation of Actions ActSections 37 and 38
  • Limitation of Actions ActSection 41
  • Land Registration Act, 2012Section 24
  • Land Registration Act, 2012Section 25(1), (2)
  • Land Registration Act, 2012Section 26(1), (2)
  • Land Registration Act, 2012Section 28
  • Mining ActCap. 306 (as referenced in section 41)
  • Mineral Oil ActCap. 307 (as referenced in section 41)
  • Water ActCap. 372 (as referenced in section 41)
  • Government Lands ActCap. 280 (as referenced in section 41)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; claim for adverse possession under the Limitation of Actions Act (Cap. 22)

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, "Mary Njoki Muya v Francis Musundi Omari & another [2019] KEELC 2269 (KLR)", Case Analysis (2019). Eldoret ELC No. 434 of 2015 (OS) (consolidated with Eldoret ELC No. 248 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2269/eng@2019-07-11

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