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ELCAllowedOriginating Summons dated 30th November 2009 ( amended 1st August 2016 )· [2019] KEELC 2610 (KLR)

Joseph Wanyangi Muiruri v Kung’u Kibuika & another [2019] KEELC 2610 (KLR)

Environment and Land Court
14 June 2019
LGL. N. GACHERUGOG. M. A. ONGONDO
1,377 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A buyer who occupied land openly for over 12 years after the sale failed legally won ownership in Kenya.

What this practically means

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Executive summary

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The plaintiff sued by originating summons dated 30th November 2009, amended on 1st August 2016 to substitute the original defendant Jacob Kibuika Muiruri (who died on 12/3/2010) with his sons, the present defendants. The plaintiff sought a declaration that he had acquired title to LR No. Githunguri/Githiga/1359 by adverse possession under sections 37 and 38 of the Limitation of Actions Act, that the defendants' title was extinguished, an order for transfer, and costs. He testified that in 1992 the deceased sold him the suit land for Kshs. 13,000/= and he paid Kshs. 27,000/= to the Settlement Fund Trustee to clear the deceased's loan, producing a receipt and sale agreement as exhibits. The defendants were served but did not participate. The court framed four issues from the amended originating summons, following Galaxy Paints v Falcon Grounds. It held that the sale agreement became void under section 6(1) of the Land Control Act, that the plaintiff's continued open, peaceful and notorious occupation since 1992 constituted ouster followed by adverse possession, and that payment of the purchase price created an enforceable constructive trust, equity being a national value under Article 10(2)(b) of the Constitution. Finding the claim unchallenged and proved on a balance of probability, the court entered judgment for the plaintiff jointly and severally against the defendants in terms of all four orders sought, including costs. No submissions were filed despite direction.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession

Holding

Yes - the plaintiff has been in open, exclusive and notorious occupation of the suit land since 1992, ousting the registered proprietor, and his claim succeeded on a balance of probability

Reasoning

The court found that the plaintiff purchased the suit land from the deceased in 1992 and paid Kshs. 27,000/= to the Settlement Fund Trustee on the deceased's account. The sale agreement became void under section 6(1) of the Land Control Act for want of consent, and the plaintiff's continued open and peaceful occupation for over seventeen years ripened into adverse possession, evidenced by P Exhibits 1 to 3 and unchallenged evidence of PW1.

p. 2
02

Whether a constructive trust arose despite the void Land Control Act transaction

Holding

Yes - payment of the purchase price created a constructive trust in the plaintiff's favour which is enforceable even where the transaction is controlled under the Land Control Act

Reasoning

The court invoked the doctrine of equity as a national value and principle of governance under Article 10(2)(b) of the Constitution and relied on the Court of Appeal's holding that a constructive trust relating to land subject to the Land Control Act is enforceable. Since PW1 paid the purchase price as shown on P Exhibits 1 and 2, he gained both legal and equitable interests in the suit land.

p. 2

Legal principles established

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  • When a purchaser in a controlled transaction is permitted to be in possession of the land by the vendor pending completion, continued occupation after the transaction becomes void is adverse possession from that time
  • A constructive trust relating to land subject to the Land Control Act is enforceable and payment of the purchase price confers a legal and equitable interest
  • Open, exclusive and notorious occupation coupled with ouster of the registered proprietor gives rise to adverse possession

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendants jointly and severally in terms of orders 1, 2, 3 and 4 sought on the face of the amended originating summons
  2. 2.Declaration that the plaintiff has acquired title to LR No. Githunguri/Githiga/1359 by adverse possession under sections 37 and 38 of the Limitation of Actions Act
  3. 3.Declaration that the defendants' title to LR No. Githunguri/Githiga/1359 is extinguished in favour of the plaintiff
  4. 4.The defendants to transfer the suit land to the plaintiff forthwith
  5. 5.The defendants to pay the plaintiff's costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsections 37 and 38
  • Land Control Act (Cap 302)section 6(1)
  • Constitution of Kenya, 2010Article 10(2)(b)

Cases cited (5)

  • Galaxy Paints Co. Ltd – vs- Falcon Grounds Ltd
    (2000) 2EA 385
  • Kariuki –v- Kariuki
    (1983) KLR 227
  • Samwel Miki Waweru –v- Jane Njeri Richu
    (2004) eKLR
  • Macharia Mwangi Maina and 87 others –v- Davidson Mwangi Kagiri
    (2014) eKLR
  • Wilson Kazungu Katana and 101 others –v- Salim Abdallah Bakshwein and another
    (2015) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution of Kenya, 2010 (adverse possession claim over registered land)

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 Wanyangi Muiruri v Kung’u Kibuika & another [2019] KEELC 2610 (KLR)", Case Analysis (2019). Originating Summons dated 30th November 2009 ( amended 1st August 2016 ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2610/eng@2019-06-14

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