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ELCDismissedELC No 511 of 2017 (Formerly Nakuru ELC No 104 of 1999)· [2019] KEELC 2571 (KLR)

Stephen Njoroge Kiboli v David Mwaele Nguli [2019] KEELC 2571 (KLR)

Environment and Land Court
9 July 2019
MOM.C. Oundo
6,676 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner with a valid title lost his land claim because he waited too long — decades of open occupation gave the occupier ownership by adverse possession.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Laikipia/Nyahururu/1945 and 1950 (subdivisions of the original parcel 237 registered to his mother), sued the legal representatives of the original deceased Defendants for eviction of the 1st Defendant from parcel 1950 and a permanent injunction, alleging trespass and encroachment beginning in 1996-1997, corroborated by a court-ordered surveyor's report. The Defendants denied trespass, contending they had occupied the land since 1971, raised limitation as a bar, and filed a counterclaim for adverse possession; the 2nd Defendant claimed a prescriptive easement over the passage used to draw water since 1971. The court framed four issues: proprietorship, limitation, adverse possession, and easement. It found the Plaintiff had established proprietorship by unchallenged title deeds. However, accepting the Defendants' evidence of occupation since 1971, corroborated by prior litigation in Nakuru HCCC No 159 of 1992 and Court of Appeal Civil Appeal No 231 of 1999, the court held the suit against the 1st Defendant was barred by Section 7 of the Limitation of Actions Act (twelve years) and the trespass claim against the 2nd Defendant by Section 4(2) (three years), depriving the court of jurisdiction. The adverse possession counterclaim was held properly raised by defence and counterclaim, and was upheld as possession exceeded twelve years with animus possidendi, unaffected by the subdivision of the land. Over forty years' use of the way to water created an absolute and indefeasible easement under Section 32. The Plaintiff's suit was dismissed with costs, and the court directed subdivision and transfer of the occupied portion to the 1st Defendant within sixty days, failing which the Deputy Registrar would execute the transfer documents.

Key legal issues

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01

Plaintiff's proprietorship of parcels 1945 and 1950

Holding

Established through unchallenged title deeds issued 20 November 1995

Reasoning

The court considered the amended plaint and the title deeds produced as Pf exh 1(a-b), issued on 20 November 1995, which the Defendants never challenged, and concluded the Plaintiff had established proprietorship of both parcels.

p. 5
02

Limitation against the Plaintiff's suit

Holding

Suit against the 2nd Defendant (trespass) barred under Section 4(2); suit against the 1st Defendant barred under Section 7 of the Limitation of Actions Act, defeating the court's jurisdiction

Reasoning

The Defendants entered the land in 1971, corroborated by prior Nakuru HCCC No 159 of 1992 and Court of Appeal Civil Appeal No 231 of 1999. Limitation ran from 1971, expiring about 1983, so the 1999 suit fell afoul of Section 7; the trespass claim against the 2nd Defendant was barred after three years under Section 4(2).

p. 6
03

Adverse possession counterclaim by the 1st Defendant

Holding

Upheld; possession since 1971 exceeded 12 years with animus possidendi, and subdivision could not defeat the overriding interest

Reasoning

The court found the original 1st Defendant and family settled on the land in the 1970s, built houses and farmed continuously. Their acts were nec vi, nec clam, nec precario and manifested animus possidendi. Relying on Githu v Ndeete and Chevron (K) Ltd v Harrison Charo Wa Shutu, subdivision could not interrupt or defeat the matured overriding interest.

p. 7
04

Easement claimed by the 2nd Defendant

Holding

A prescriptive easement was created under Section 32 of the Limitation of Actions Act by over 40 years' use of the passage to the water point

Reasoning

The 2nd Defendant and community had used a road through parcel 237 since 1971 to access water. The court held this was not unauthorized intrusion amounting to trespass, and by virtue of Section 32 of the Limitation of Actions Act the twenty-year period matured into an absolute and indefeasible easement.

p. 6

Legal principles established

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  • A claim of adverse possession may properly be raised by defence and counterclaim, not only by originating summons
  • Subdivision or change of ownership of land occupied under adverse possession does not interrupt or defeat the adverse possessor's overriding interest
  • Where a matter is statute-barred the court has no jurisdiction to entertain it
  • Twenty years' open, peaceful enjoyment of a way or use of water creates an absolute and indefeasible easement

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The Plaintiff shall subdivide and transfer to the 1st Defendant the identifiable portion of land that he occupies at the latter's expense within 60 days, failing which the Deputy Registrar at Nyahururu shall execute the necessary transfer documents on behalf of the 1st Defendant
  3. 3.Costs to the Defendants

Authorities

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Legislation

  • Land Registration ActSection 24
  • Limitation of Actions ActSection 4(2)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 32
  • Limitation of Actions ActSection 38(1)
  • Civil Procedure RulesOrder 37 Rule 7 (also referred to as Section 31 Rule 7)

Cases cited (13)

  • Njuguna Ndatho vs Masai Itumo & 2 Others
    [2002] eKLR
  • Gabriel Mbui vs Mukinda Maranya
    [1993] eKLR
  • Wines & Spirits Kenya Limited & Another vs George Mwachiru Mwango
    [2018] eKLR
  • Aquila Properties Ltd vs Bhupendra Patel
    Nbi ELC No. 173 of 2012
  • Bosire Ongero vs Royal Media Services
    [2015] eKLR
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
  • Mariba v Mariba
    Civil Appeal No. 188 of 2002
  • Wabala v Okumu
    (1997) LLR 609 (CAK)
  • Gulam Mariam Noordin v Julius Charo Karisa
    Civil Appeal No 26 of 2015
  • Bayete Co. Ltd v Kosgey
    [1998] LLR 813
  • Mtana Lewa vs Kahindi Ngala Mwagandi
    [2015] eKLR
  • Githu vs Ndeete
    1984 KLR 776
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (matter formerly Nakuru High Court Civil Case No 104 of 1999, transferred to Nyahururu ELC)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Stephen Njoroge Kiboli v David Mwaele Nguli [2019] KEELC 2571 (KLR)", Case Analysis (2019). ELC No 511 of 2017 (Formerly Nakuru ELC No 104 of 1999). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2571/eng@2019-07-09

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