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ELCPartially AllowedOriginating Summons dated 20th May 2016 (Nakuru) - number not stated in judgment· [2019] KEELC 2416 (KLR)

Joseph Githinji Kamau v Kiprugut Arap Keino [2019] KEELC 2416 (KLR)

Environment and Land Court
15 July 2019
4,092 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land occupied openly for over 12 years belongs to the occupier's family, even after the occupier died.

What this practically means

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Executive summary

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The plaintiff, suing as legal representative of the estate of Douglas Kamau Thumbi (deceased) under a limited grant ad litem, claimed by Originating Summons that he had acquired Dundori/Muguathi Block 2/336 by adverse possession, sought a declaration to that effect, rectification of the register, dispensation with the title deed and costs. The defendant, by a replying affidavit treated as defence and counterclaim, asserted that the 1985 sale to the deceased was cancelled in 1989 with the purchase price refunded before the District Officer, that the deceased later vacated, and counterclaimed for a declaration of ownership and the plaintiff's eviction as a trespasser. At trial only the two parties testified. The court framed three issues: adverse possession, trespass, and availability of reliefs. Applying sections 7, 13, 17 and 38 of the Limitation of Actions Act and Court of Appeal authority, it held that although entry in 1985 was contractual, time began running upon the alleged 1989 cancellation of the sale; on the defendant's own cross-examination the deceased remained in open, uninterrupted possession until his death in 2005, some 16 years. The defendant's 2014 eviction suit did not interrupt time because it sued the plaintiff personally, not the estate. The estate therefore established adverse possession; the plaintiff was no trespasser and the counterclaim was dismissed. However, the plaintiff holding only a limited grant could not be registered as proprietor, so the court ordered registration upon a future full grant and issued an inhibition protecting the property meanwhile, with costs to the plaintiff. Judgment, originally due 13th February 2019, was delivered on 15th July 2019 after the judge's medical leave.

Key legal issues

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01

Whether the deceased's estate acquired title by adverse possession

Holding

Yes. The deceased entered under a sale agreement in 1985; the sale was cancelled and the price refunded in 1989, whereupon time began to run. By his death in 2005 the deceased had been in open, uninterrupted adverse possession for 16 years, exceeding the statutory 12 years, and no effective interruption occurred.

Reasoning

The court applied sections 7, 13, 17 and 38 of the Limitation of Actions Act and the nec vi, nec clam, nec precario standard. Entry under a sale agreement is contractual, not adverse, so time ran from the 1989 cancellation/refund. The defendant's own cross-examination confirmed continuous occupation by the deceased until death in 2005, open possession (building a house, burial on the land), and that the defendant never resumed living on the plot. The 2014 eviction suit did not interrupt time since it sued the plaintiff personally, not the estate.

p. 4
02

Whether the plaintiff is a trespasser

Holding

No. Having found adverse possession established, the plaintiff, who was on the land as the deceased's child, is on the suit property validly and the counterclaim fails.

Reasoning

The trespass question was tied to the adverse possession finding. The defendant admitted the deceased was on the suit property with his children, which includes the plaintiff. A person in possession under a matured adverse possession claim is not a trespasser; consequently the defendant's counterclaim seeking a declaration of ownership and eviction was untenable and was dismissed.

p. 4
03

Whether the reliefs sought are available to the plaintiff

Holding

Partially. The estate is entitled to the declaration of adverse possession and its full benefits, but the plaintiff, holding only a limited grant ad litem, cannot be registered as proprietor; instead an inhibition was ordered pending a full grant.

Reasoning

The grant ad litem was expressly limited to filing suit, and this suit falls within it, so the estate enjoys the full benefits of the judgment. However, only a holder of a full grant can be registered as proprietor. To protect the estate pending issuance of a full grant in future proceedings, the court registered no one and instead ordered an inhibition against any dealings with the suit property.

p. 4

Legal principles established

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  • Where a claimant enters land pursuant to a sale agreement, possession is contractual and time for adverse possession begins to run only upon determination of the licence, e.g. cancellation or refund of the purchase price
  • An eviction suit filed against a claimant in his personal capacity, and not against the estate of the deceased through whom adverse possession is claimed, does not interrupt the running of limitation time as far as the estate is concerned
  • A holder of a limited grant ad litem may pursue and obtain the benefits of an adverse possession suit on behalf of the estate, but cannot be registered as proprietor until a full grant issues

Court orders

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  1. 1.The defendant's counterclaim is dismissed
  2. 2.A declaration that the estate of Douglas Kamau Thumbi (deceased) has become entitled by adverse possession to all that parcel of land known as Dundori/Muguathi Block 2/336 situated in Nakuru
  3. 3.The District Land Registrar Nakuru to register such person or persons who will obtain full grant of letters of administration in respect of the estate of Douglas Kamau Thumbi (deceased) as the registered proprietor(s) of Dundori/Muguathi Block 2/336
  4. 4.An order of inhibition inhibiting registration of any dealing in respect of Dundori/Muguathi Block 2/336 pending compliance with the registration order
  5. 5.The plaintiff shall have costs of these proceedings

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 9
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 37
  • Limitation of Actions ActSection 38

Cases cited (9)

  • Wines & Spirits Kenya Limited & another v George Mwachiru Mwango
    [2018] eKLR
  • Benjamin Kamau Murima & Others vs. Gladys Njeri
    C A No. 213 of 1996
  • Wanyoike Gathure v/s Berverly
    (1965) EA 514
  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] eKLR
  • Mtana Lewa vs Kahindi Ngala Mwagandi
    [2015] eKLR
  • Mate Gitabi vs Jane Kabubu Muga Alias Jane Kaburu Muga & 3 Others
    [2017] eKLR
  • Kasuve vs Mwaani Investments Limited & 4 Others
    [2004] 1 KLR
  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others
    [2009] eKLR
  • WAMBO v NJUGUNA
    1983 KLR 172
Jurisdiction invoked
Sections 7, 13, 17 and 38 of the Limitation of Actions Act (Cap 22); original jurisdiction of the Environment and Land Court

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, "Joseph Githinji Kamau v Kiprugut Arap Keino [2019] KEELC 2416 (KLR)", Case Analysis (2019). Originating Summons dated 20th May 2016 (Nakuru) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2416/eng@2019-07-15

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