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ELCDismissedThika ELCC No. 51 of 2017 (Formerly Nairobi HCC No. 479 of 2005) consolidated with Thika ELCC No. 211 of 2018 (Formerly Nairobi HCC No. 462 of 2005)· [2019] KEELC 2638 (KLR)

Samwel Kimani Mutu & 2 others v Mumbi Gathina & 3 others; Chai Karugi, Nganga Munyua & 4 others (Interested Parties) [2019] KEELC 2638 (KLR)

Environment and Land Court
14 June 2019
2,248 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Thika dismissed a family's adverse possession claim because their occupation of the land was interrupted in 1995, so they never gained ownership.

What this practically means

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Executive summary

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This judgment disposes of two consolidated suits transferred to the Environment and Land Court at Thika: Thika ELCC No. 51 of 2017 (formerly Nairobi HCC No. 479 of 2005) concerning L.R No. Ndarugu/Gacharage/125 (the 1st suit land) and Thika ELCC No. 211 of 2018 (formerly Nairobi HCC No. 462 of 2005) concerning L.R No. Ndarugu/Gacharage/490 (the 2nd suit land), consolidated by consent order on 5th November 2018. By originating summons filed in 2005, the plaintiffs claimed portions of both parcels by adverse possession, dating their occupation to 1958 and 1967 respectively, and sought registration as proprietors in place of the defendants, widows of Gathina Kungu (Deceased 2) and Philomena Njambi Mutu, widow of George Kungu (Deceased 3). The defendants denied the plaintiffs' occupation, asserted that the lands form part of the estate of Deceased 2, pleaded res judicata by virtue of Nairobi HCC Succession Cause No. 983 of 1995, and sought dismissal with costs. The court distilled three requirements for adverse possession from Mbira and Wilson Kazungu Katana: registration of the land in a name other than the applicant's; open and exclusive occupation adverse to the owner's title; and occupation exceeding twelve years with dispossession. Although the plaintiffs established that the lands were registered in the name of Deceased 2, the court found their possession was interrupted when they were chased away upon the 1995 sale of the 1st suit land to the interested parties, and by arbitration attempts and the succession cause. The claim failed and both suits were dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiffs acquired title to the 1st and 2nd suit lands by adverse possession

Holding

The plaintiffs did not acquire title by adverse possession; their claim was dismissed

Reasoning

Applying the three dictates from Mbira and Wilson Kazungu Katana, the court found the lands were registered in the name of the deceased Gathina Kungu, not the plaintiffs. Although the plaintiffs asserted open and continuous occupation since 1958/1967, PW1 admitted the defendants chased them away when the 1st suit land was sold to buyers in 1995, and the lands were subject to arbitration attempts and a succession cause (Nairobi HCC Succession Cause No. 983 of 1995), interrupting possession. Possession was therefore neither open, notorious nor uninterrupted for over twelve years.

p. 3
02

Whether possession was open, notorious and exclusive

Holding

The plaintiffs' possession was not open and notorious; it was interrupted by the 1995 sale and the succession/arbitration proceedings

Reasoning

The court noted PW1's admission that the defendants chased the plaintiffs away from the 1st suit land when it was sold to five buyers in 1995. Citing Gatimu Kinguru vs Munya Gatangi, the court held that possession must be open and notorious with no discontinuation, and applying Wanyoike Gathure vs Beverly, found the arbitration attempts and succession cause interrupted possession, defeating the claim of continuous adverse occupation.

p. 3
03

Whether there was dispossession of the registered owner

Holding

There was no proved dispossession; the defendants and interested parties, not the plaintiffs, were in possession since 1995

Reasoning

The court weighed the defendants' contention that the plaintiffs had never been in possession and that the interested parties had occupied the lands since 1995. Relying on Halsbury's Laws of England, the court noted that there is no dispossession of an owner if enjoyment and use of the land are not possible. The totality of the evidence showed the plaintiffs failed to discharge the burden of proving dispossession of the owner.

p. 3
04

Whether the suits were res judicata by dint of Nairobi HCC Succession Cause No. 983 of 1995

Holding

The res judicata objection was not expressly determined; the court instead referenced the succession cause as interrupting possession. The suits were dismissed on the adverse possession claim

Reasoning

The defendants argued the matter was res judicata, having been heard and determined in Nairobi High Court Succession Cause No. 983 of 1995, in which several orders were made regarding the estate of deceased 2. The court did not rule on res judicata as a distinct issue but used the succession cause and arbitration attempts as evidence that the plaintiffs' possession was interrupted, disposing of the claim on the adverse possession requirements instead.

p. 3

Legal principles established

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  • Adverse possession requires that the land be registered in the name of a person other than the applicant
  • The applicant's occupation must be open and exclusive in a manner adverse to the title of the owner
  • The applicant must have occupied the land for a period in excess of twelve years, having dispossessed the owner or the owner having discontinued possession
  • Possession may take forms such as fencing or cultivation, but evidence of cultivation must be definite as to area and time
  • Possession of land is interrupted where the land is subject to legal proceedings or other disputes over the estate, defeating an adverse possession claim

Court orders

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  1. 1.The 1st suit, Thika ELCC No. 51 of 2017, as consolidated with the 2nd suit, Thika ELCC No. 211 of 2018, is dismissed
  2. 2.The plaintiffs shall bear the costs of the suits

Authorities

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Legislation

  • Law of Succession ActSection 45

Cases cited (9)

  • Mbira -vs- Gachuhi
    (2002) 1 EA
  • Wilson Kazungu Katana and 101 others -vs- Salim Abdala Bakshwein and another
    (2015) eKLR
  • Wanje -vs- Saikwa
    (1984) KLR 284
  • Virginia Wanjiku Mwangi -vs- David Mwangi Jotham Kamau
    (2018) eKLR
  • Kimani Ruchine and another -vs- Swift Rutherford Company Limited and another
    (1976:80) 1 KLR 1500
  • Titus Ong'ang'a Nyachieo -vs- Martin Okioma Nyauma and 3 others
    (2017) eKLR
  • West Bank Estate Limited -vs- Arthur
    (1966) 3 WLR 750
  • Gatimu Kinguru -vs- Munya Gatangi
    (2008) 1 KLR 1007 at 1015
  • Wanyoike Gathure -vs- Beverly
    (1965) EA 514
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land disputes); suits transferred from the High Court (Nairobi HCC Nos. 479 and 462 of 2005) and consolidated by consent order of 5th November 2018

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, "Samwel Kimani Mutu & 2 others v Mumbi Gathina & 3 others; Chai Karugi, Nganga Munyua & 4 others (Interested Parties) [2019] KEELC 2638 (KLR)", Case Analysis (2019). Thika ELCC No. 51 of 2017 (Formerly Nairobi HCC No. 479 of 2005) consolidated with Thika ELCC No. 211 of 2018 (Formerly Nairobi HCC No. 462 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2638/eng@2019-06-14

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