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ELCDismissedOriginating Summons (Kerugoya ELC)· [2019] KEELC 2399 (KLR)

Kinyua Jackton v Francis Muchira Kiura [2019] KEELC 2399 (KLR)

Environment and Land Court
28 June 2019
ECE.C. Cherono
1,800 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff filed an Originating Summons seeking to be registered as proprietor of 3 acres out of L.R. No. Ngariama/Rungeto/295 on the basis of adverse possession, having alleged continuous occupation from 1972, together with an order for transfer and a permanent injunction, and costs. The defendant filed a replying affidavit denying the claim, contending that the title sought to be impugned did not exist, that the plaintiff had concealed numerous prior suits over the same parcel (including HCCC No. 6 of 2000 (O.S) Embu, Miscellaneous Application No. 5 of 1999 and LDT No. 3 of 2008 (Gichugu)), that the matter was res judicata, and that the plaintiff was a vexatious litigant with unclean hands. The defendant did not attend the hearing and the suit proceeded ex parte. The plaintiff testified that he entered the land in 1972, planted coffee and trees, built five houses, and relied on a ruling of Justice Tuiyot of 7th May 2001 directing him to file an adverse possession claim. The court, applying Sections 7, 13 and 38 of the Limitation of Actions Act and the Kimani Ruchine, Teresia Wachuka Gachira and Wambugu v Njuguna authorities, held that adverse possession requires exclusive, continuous and uninterrupted possession for twelve years. The record showed the plaintiff had been lawfully evicted on 9th October 2009 pursuant to an order in LDT No. 3 of 2008, interrupting his possession, and the Tuiyot ruling showed his occupation was on invitation, so time ran only upon determination of the licence. The suit was dismissed with each party bearing his own costs.

Key legal issues

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01

Elements of adverse possession

Holding

The claimant must prove exclusive, continuous and uninterrupted possession for at least twelve years, with the owner's knowledge or means of knowledge

Reasoning

The court set out the statutory framework under Sections 7, 13 and 38 of the Limitation of Actions Act and the case law requiring possession as of right, nec vi, nec clam, nec precario. The plaintiff admitted he had been evicted from the land on 9th October 2009 pursuant to a court order, so his possession was interrupted and the claim could not crystallise.

p. 2
02

Effect of occupation by invitation/licence

Holding

Occupation on invitation is not adverse; time runs only from determination of the licence

Reasoning

The plaintiff relied on a 2001 ruling by Justice Tuiyot which found that he had occupied the land since 1972 on invitation. The court held that such occupation becomes adverse only upon determination of the licence, and therefore the plaintiff's claim was untenable.

p. 3
03

Effect of prior eviction by court order

Holding

Lawful eviction pursuant to a court order interrupts possession and defeats a pending adverse possession claim

Reasoning

The record showed the plaintiff was evicted on 9th October 2009 by auctioneers pursuant to an order in LDT No. 3 of 2008. Since possession had ceased and was interrupted by a lawful court order, the period of adverse possession could not run and the claim failed.

p. 2

Legal principles established

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  • A claimant must be in exclusive, continuous and uninterrupted possession of land for twelve years for adverse possession to crystallise
  • Possession under licence or invitation is not adverse; time begins to run only upon determination of the licence
  • Eviction pursuant to a court order interrupts adverse possession

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear his own costs

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 7
  • Limitation of Actions Act (Cap 22)Section 13(1),(2),(3)
  • Limitation of Actions Act (Cap 22)Section 37
  • Limitation of Actions Act (Cap 22)Section 38

Cases cited (3)

  • Kimani Ruchine Vs Swift Rutherford & Co. Ltd
    (1980) K.L.R
  • Teresia Wachuka Gachira Vs Joseph Mwangi Gachira
    Civil Appeal No. 325 of 2003 (unreported)
  • Wambugu Vs Njuguna
    (1983) K.L.R 172
Jurisdiction invoked
Sections 7, 13 and 38 of the Limitation of Actions Act (Cap 22) - claim for registration as proprietor by adverse possession

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, "Kinyua Jackton v Francis Muchira Kiura [2019] KEELC 2399 (KLR)", Case Analysis (2019). Originating Summons (Kerugoya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2399/eng@2019-06-28

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