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ELCPartially AllowedELC Case at Thika (transferred from Nairobi Civil Division; original suit filed 2nd June 2005)· [2019] KEELC 3122 (KLR)

Edith Njoki Karicu v Joseph Mburu Njoroge & another [2019] KEELC 3122 (KLR)

Environment and Land Court of Kenya at Thika
31 May 2019
LGL. Gacheru
6,319 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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A family that occupied Kiambu land for over 50 years won ownership from a registered titleholder, proving a title document alone cannot defeat long occupation.

What this practically means

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Executive summary

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The plaintiff (originally Gathuku Karicu, substituted upon death by his widow Edith Njoki Karicu) sued claiming ownership of LR Githunguri/Kimathi/T.59, alleging he purchased it in 1962 for Kshs.700/= from three brothers - Karoki, Karugiro and Kibuku Kimani - the eldest of whom held the registered title in trust. He occupied and developed the land until September 2002, when he was arrested after a complaint by the 1st Defendant, who held a certificate of title registered in 1972 and had charged the land to the 2nd Defendant. The Plaintiff sought a declaration of ownership, removal of the 1st Defendant's name from the register, nullification of the three charges, damages and an injunction, pleading fraud and, in the alternative, adverse possession. The 1st Defendant denied the claim, asserting he purchased the land from Karoki Kimani in 1972 and was the absolute proprietor. The court heard viva voce evidence, commissioned a Deputy Registrar's site visit, and found the Plaintiff's purchase and continuous open occupation proved, while the 1st Defendant produced no evidence of his purchase and never sought possession. Fraud was not strictly proved to the higher standard required, but the root of the 1st Defendant's title was found questionable. The court declared the Plaintiff owner by adverse possession under Section 38 of the Limitation of Actions Act, ordered rectification of the register, struck out the 1st Defendant's name, and declared the three charges null and void. General damages and the injunction were refused; costs with interest were awarded to the Plaintiff.

Key legal issues

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01

Whether the deceased Plaintiff purchased the suit property in 1962 from Karoki Kimani and his brothers

Holding

The court found it probable that the purchase took place orally for Kshs.700/=, taking judicial notice of the practice of registering ancestral land in the name of the eldest son as trustee during 1950s consolidation.

Reasoning

PW2, wife of one of the selling brothers, testified she witnessed the sale and received her husband's share. The court took judicial notice that during the 1958 consolidation in Central Province, ancestral land was commonly registered in the name of the elder son as trustee for siblings. Section 3(3) Law of Contract Act did not bar the claim since a 1962 transaction was probably verbal, and the Defendant likewise produced no written agreement. The court found no reason to doubt the purchase.

p. 5
02

Whether the Plaintiff was in open and uninterrupted occupation until September 2002

Holding

Yes - the court found open and uninterrupted occupation from 1962 until the September 2002 arrest, with the Plaintiff's family remaining on the land to date.

Reasoning

The Deputy Registrar's locus visit found a fenced parcel with three houses occupied by the Plaintiff's family, subsistence crops and only a few blue gum trees, contradicting the 1st Defendant's claim of utilization. The 1st Defendant, living in a different village, never sought vacant possession or sued for eviction. The occupation was only briefly interrupted by the 2002 arrest, after which the Plaintiff remained in occupation.

p. 5
03

Whether the 1st Defendant obtained the title fraudulently

Holding

Fraud was not strictly proved, but the root of the 1st Defendant's title was questionable since he produced no evidence of the purchase or transfer.

Reasoning

Fraud allegations require a standard above balance of probabilities, which the Plaintiff failed to meet. However, relying on Munyu Maina v Hiram Gathiha Maina, a certificate of title is insufficient where the root of title is challenged. The 1st Defendant produced no sale agreement, no witness to the purchase, and was silent about his 1972 acquisition despite the Plaintiff's continuous occupation and their being village mates.

p. 6
04

Whether the Plaintiff acquired title by adverse possession

Holding

Yes - the Plaintiff was entitled to be declared owner by adverse possession having occupied openly for over 50 years.

Reasoning

Under Section 38 of the Limitation of Actions Act, a person in adverse possession may apply to be registered as proprietor. The Plaintiff's occupation from 1962 was open, not by force, stealth or licence, and exceeded 12 years. The 1st Defendant, though holding title since 1972, never sought possession or filed a counterclaim for eviction, and so was dispossessed of use and occupation.

p. 7

Legal principles established

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  • Fraud must be proved to a standard higher than a balance of probabilities, albeit below beyond reasonable doubt.
  • A registered proprietor whose root of title is challenged must go beyond the title instrument to prove legality of acquisition.
  • Possession or occupation of land confers equitable rights binding on the land.
  • A person in open, continuous and uninterrupted possession of registered land for over 12 years without the owner's action acquires title by adverse possession.

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendants jointly and severally in terms of prayers (a), (b) and (c) of the Plaint
  2. 2.Declaration that the Plaintiff is the owner of the suit premises by virtue of adverse possession and should be registered as such
  3. 3.The 1st Defendant's name to be struck out of the register of title for the suit property
  4. 4.The 3 charges held by the 2nd Defendant declared null and void against the Plaintiff
  5. 5.Costs of the suit to the Plaintiff with interest at court's rate from the date of filing until payment in full

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Evidence ActSections 107(1) and 109
  • Land Registration ActSection 26(1) and subsection 1(a)&(b); Section 80(1)
  • Limitation of Actions ActSection 38(1)
  • Auctioneers Act (Cap. 526)

Cases cited (7)

  • Samuel Samita Namunyu Vs Philmon Machina Ndiwa & 3 Others
    (2014) eKLR
  • Njuwangu Holdings Limited Vs Langata KPA, Nairobi & 5 Others
    (2014) eKLR
  • Munyu Maina Vs Hiram Gathiha Maina
    Civil Appeal No.239 of 2009
  • Macharia Mwangi Maina & 87 others Vs Davidson Mwangi Kagiri
    (2014) eklr
  • Mwangi & Another Vs Mwangi
    (1986) KLR 328
  • Mtana Lewa Kinya Vs Gerald Kwendaka
    (2015)
  • Sisto Wambugu Vs Kamau Njuguna
    [1983] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act, the suit having been transferred to the ELC because the suit property is in Kiambu County

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, "Edith Njoki Karicu v Joseph Mburu Njoroge & another [2019] KEELC 3122 (KLR)", Case Analysis (2019). ELC Case at Thika (transferred from Nairobi Civil Division; original suit filed 2nd June 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3122/eng@2019-05-31

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