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ELCAllowedOriginating Summons (unnumbered on the face of the judgment - filed 19/12/2017)· [2019] KEELC 3075 (KLR)

Mary Igoki Muruaruchiu v Johnson Rwigi (sued as the legal Representative of M’Murianki M’Mugwika Deceased) [2019] KEELC 3075 (KLR)

Environment and Land Court
22 May 2019
LML N Mbugua
2,597 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan buyer who occupied land she paid for in 1989 won full ownership through adverse possession after 12 uninterrupted years, even without a completed transfer.

What this practically means

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Executive summary

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By an Originating Summons filed on 19 December 2017 under Order 37 rule 7 of the Civil Procedure Rules and sections 7, 16, 17 and 38 of the Limitation of Actions Act, the Plaintiff sought determination of questions on adverse possession over LR IGOJI/KINORO/1043 (0.052 ha). She testified that in 1989 she bought the land from M'Muruanki M'Mugwika under a handwritten and a formal sale agreement, paid Kshs 20,000, and took possession, developing three semi-permanent houses and farming. The vendor handed her the original title deed for safe custody pending transfer but died on 29 February 2008 before transfer. The Defendant, the vendor's son and legal representative in HCCC Succ. Cause 638 of 2009, listed the suit land among estate assets for distribution, excluding her. He appeared but filed no replying affidavit and did not attend the hearing; the suit proceeded to formal proof on 18 October 2018 after proof of service. Applying Kasuve v Mwaani Investments, Wanyoike v Kahiri, Joseph Gahumi Kiritu v Lawrence Munyambu Kabura, Jandu v Kirpal, Wainaina v Murai and Kweyu v Omuto, the court found the Plaintiff's possession open, continuous, exclusive and uninterrupted since 1989; time ran from payment of the purchase price, nothing done by the vendor or the Defendant stopped it, and by 2001 her title by adverse possession had accrued and the vendor's title was extinguished. The suit was allowed with costs, with orders for registration and default execution by the Deputy Registrar and dispensation with the original title deed.

Key legal issues

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01

Whether the Plaintiff proved adverse possession of LR IGOJI/KINORO/1043

Holding

Yes - the Plaintiff took possession in 1989 upon payment of the purchase price, occupied openly, continuously and exclusively for over 12 years without interruption, so her title by adverse possession accrued by 2001 and the vendor's title was extinguished

Reasoning

The Plaintiff purchased the land in 1989 and took possession on payment of the purchase price. Her possession - building three semi-permanent houses and farming - was open, exclusive and uninterrupted. No act by the vendor or the Defendant stopped time from running. By 2001 twelve years had elapsed; under sections 7 and 17 of the Limitations of Actions Act the vendor's title was extinguished and adverse possession accrued in the Plaintiff's favour, even before the vendor's death in 2008.

p. 3
02

When time began to run in a purchase scenario

Holding

Time runs from payment of the last installment of the purchase price, when the purchaser takes possession

Reasoning

Relying on Wanyoike v Kahiri, the court held that in a purchase scenario limitation starts on payment of the last installment. The Plaintiff pleaded she took possession upon payment of the agreed consideration, and no contrary evidence showed the full price was unpaid; on a balance of probability that evidence was credible, so time began running in 1989.

p. 3
03

Whether anything done by the vendor or his legal representative prevented time from running

Holding

No - neither the vendor nor the Defendant as administrator took legal proceedings or made an effective entry to assert the owner's right, so time continued to run

Reasoning

Under section 16 of the Limitations of Actions Act the Defendant as administrator claimed without interval from the vendor's death. Applying Joseph Gahumi Kiritu v Lawrence Munyambu Kabura, time stops only where the owner sues or makes a peaceable and effective entry, or the adverse possessor admits the owner's right. No such act was discernible on the evidence.

p. 3
04

Whether the vendor's knowledge of the occupation mattered

Holding

Yes - the paper owner must have knowledge of the adverse possessor's occupation and dispossession; the vendor had such knowledge of the Plaintiff's open possession

Reasoning

Citing Jandu v Kirpal and Wainaina v Murai, the court held the paper owner must know of the occupation and dispossession. The vendor handed the original title deed to the Plaintiff for safe custody pending transfer, evidencing both knowledge and the common intention that the land be transferred to her; the transfer formalities simply remained incomplete on his death.

p. 3

Legal principles established

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  • A claimant in adverse possession must prove exclusive, open possession as of right without interruption for 12 years after dispossession of the owner or the owner's discontinuation of possession
  • In a purchase scenario, the limitation period runs from payment of the last installment of the purchase price
  • Time stops running where the owner asserts his right by legal proceedings or effective entry, or where his right is admitted by the adverse possessor
  • Possession is a question of fact but whether that possession is adverse is a legal conclusion drawn from the proved facts

Court orders

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  1. 1.A declaration that the Plaintiff has been in open continuous and exclusive possession of the whole of LR NO IGOJI/KINORO/1043 measuring 0.052 ha
  2. 2.A declaration that the Plaintiff has established title to LR NO IGOJI/KINORO/1043 by way of Adverse Possession
  3. 3.The Plaintiff to be registered as owner of LR NO IGOJI/KINORO/1043 forthwith and, in default, the Deputy Registrar of the Court to execute all requisite documents to effect the transfer
  4. 4.The Land Registrar to dispense with the production of the original title deed in default of production by the Defendant
  5. 5.The Plaintiff to have costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13(1),(2),(3)
  • Limitation of Actions ActSection 16
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 38(1) and (2)
  • Registration of Land ActNo. 6 of 2012 (generally)
  • Land Registration ActSection 28(h)
  • Land ActSection 7
  • Civil Procedure RulesOrder 37 rule 7

Cases cited (7)

  • Kasuve Vs Mwaani Investments Limited & 4 Others
    1 KLR 184
  • Francis Gacharu Kariri v Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (UR)
  • Wanyoike v Kahiri
    [1979] KLR 239
  • Joseph Gahumi Kiritu Vs Lawrence Munyambu Kabura
    CA No 20 of 1993
  • Jandu v Kirpal
    [1975] EA 225
  • Wainaina v Murai and others
    [1976] Kenya L R 227
  • Kweyu v Omuto
    CA Civ Appeal 8 of 1990 (as yet unreported)
Jurisdiction invoked
Order 37 rule 7 of the Civil Procedure Rules and Sections 7, 13, 16, 17 and 38 of the Limitation of Actions Act (Cap 22)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mary Igoki Muruaruchiu v Johnson Rwigi (sued as the legal Representative of M’Murianki M’Mugwika Deceased) [2019] KEELC 3075 (KLR)", Case Analysis (2019). Originating Summons (unnumbered on the face of the judgment - filed 19/12/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3075/eng@2019-05-22

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