Felix Kirimi Mbaya v Salome Bahati M’ Mutunga [2019] KEELC 2564 (KLR)
The bottom line
#A Meru court gave a man ownership of land he openly lived on for over 12 years, even though the seller never transferred it.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established adverse possession of the suit land
The plaintiff proved on a balance of probabilities that he had been in uninterrupted occupation and actual possession of the suit land for a period exceeding 12 years, entitling him to be registered as proprietor by adverse possession
The plaintiff's unchallenged evidence was that his late mother purchased the suit plot in 1995, moved onto it and built a house; after her death in 1996 he continued in occupation, built his own house and has lived there since, burying his mother on the land. PW2 and PW3 corroborated this. Applying the nec vi, nec clam, nec precario standard from Kimani Ruchire v Swift Rutherfords, approved in Francis Gicharu Kariri v Peter Njoroge Mairu, the court found the possession was open, peaceful and exceeded the 12-year limitation period.
Whether the defendant's non-participation (suit undefended) affected the plaintiff's burden of proof
The defendant's evidence being absent, the plaintiff's uncorroborated-by-cross-examination evidence was sufficient to prove the claim on a balance of probabilities
The defendant's replying affidavit was struck out on 30th January 2019 as irregularly filed, and the suit proceeded undefended. The plaintiff's testimony was corroborated by PW2 and PW3 and remained unchallenged throughout the trial. The court treated the unchallenged evidence, together with the land sale agreement and official search exhibited, as sufficient to discharge the plaintiff's burden on a balance of probabilities.
Legal principles established
#- A claimant in adverse possession must prove possession used as of right, without force, secrecy or permission
Court orders
#- 1.A declaration that Felix Kirimi Mbaya has become entitled by way of adverse possession to all that parcel of land known as Kibirichia/Kibirichia/2636
- 2.An order for rectification of the register so that the plaintiff is registered as sole proprietor of Kibirichia/Kibirichia/2636 instead of the defendant
- 3.The court's Deputy Registrar is authorized to sign all requisite documents to give effect to the judgment
- 4.Any subsisting orders of injunction, inhibition, restrictions or caution are discharged to facilitate transfer of the land to the plaintiff
- 5.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Environment and Land Court jurisdiction over adverse possession claims relating to land (statutory basis not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Felix Kirimi Mbaya v Salome Bahati M’ Mutunga [2019] KEELC 2564 (KLR)", Case Analysis (2019). Not stated in the judgment (Originating Summons filed 23rd May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2564/eng@2019-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.