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ELCAllowedOriginating Summons dated 18/9/2018, filed 19/9/2018· [2019] KEELC 3346 (KLR)

Loise Muthoni Njagi v Margaret Ciambaka Mugambi [2019] KEELC 3346 (KLR)

Environment and Land Court
22 May 2019
4,606 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan widow won 4.75 acres from her co-wife after living on the land openly and without permission for over 12 years.

What this practically means

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Executive summary

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The plaintiff, a co-wife of the defendant (both widows of the late Njagi Njuki), filed an Originating Summons on 19/9/2018 seeking a declaration of adverse possession of 4.75 acres of LR Magumoni/Thuita/1318, registered in the defendant's name in 1993, and an order compelling transfer. The plaintiff claimed she had lived on and developed the land openly, continuously and without the defendant's authority for over 50 years, having been placed there by her late husband in 1963. The defendant, the first wife, replied that the land was subdivided pursuant to an order in Embu PMCC 209 of 1992, that she was duly registered as owner of parcel 1318, and that any occupation by the plaintiff of part of it was with her permission, given for family harmony, because the resulting parcels overlapped. The court found no surveyor's report proved the alleged overlap and the mutation form was not produced by its maker. Applying the principles in Mtana Lewa and Rebecca Wanganga, the court held that the plaintiff's occupation became adverse on 17/12/1993 when the defendant was registered, and the suit filed on 19/9/2018 came almost 25 years later, well beyond the 12-year limitation period. The defendant failed to prove permission on a balance of probabilities. The suit succeeded: the court declared the plaintiff entitled to be registered as owner of 4.75 acres out of parcel 1318, ordered the defendant to effect the transfer with the Deputy Registrar empowered to execute documents in default, and made no order as to costs, each party bearing their own costs as spouses of one deceased husband.

Key legal issues

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01

Whether the plaintiff's occupation was permissive or adverse

Holding

The court found the occupation adverse; the defendant failed to prove she gave permission, and the claimed overlap justifying permission was not proved.

Reasoning

The court noted there was no surveyor's report tabled to establish any overlap between parcels 1318 and 1319, which was the defendant's basis for claiming she had permitted the plaintiff to remain. The mutation form was not produced by its maker. On a balance of probabilities, the defendant did not demonstrate any permission, so the plaintiff's occupation of parcel 1318, registered to the defendant in 1993, was adverse.

p. 6
02

Whether the plaintiff acquired title by adverse possession and is entitled to be registered as owner of 4.75 acres

Holding

Yes; the suit was filed almost 25 years after registration of the defendant, far beyond the 12-year limitation period.

Reasoning

The plaintiff had occupied the area as given to her by her husband before the defendant's registration on 17/12/1993, at which point her occupation became adverse. The suit filed on 19/9/2018 came almost 25 years later. The defendant showed no developments on the parcel and would not be prejudiced; unallocated parcels 1319 and 1515 remain available for distribution to her in succession proceedings.

p. 6

Legal principles established

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  • Adverse possession is possession which is hostile, under a claim or colour of title, actual, open, uninterrupted, notorious, exclusive and continuous, and continued for 12 years it confers an indefeasible title upon the possessor.
  • Title of a registered owner is extinguished where a third party proves continuous, open, notorious and unpermitted possession for 12 years under hostile title.
  • Where a plaintiff's entry was by virtue of being a wife of the deceased registered owner, time for adverse possession may only begin to run upon the death of that owner.

Court orders

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  1. 1.Declaration that the plaintiff is entitled to be registered owner of 4.75 acres out of Land Parcel No. MAGUMONI/THUITA/1318
  2. 2.The defendant is ordered to effect the transfer of 4.75 acres out of Land Parcel No. Magumoni/Thuita/1318 to the plaintiff and in default the Deputy Registrar of this court is authorized to execute all documents necessary to effectuate the implementation of this order
  3. 3.No order as to costs; parties will bear their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSections 9, 13, 17, 37, 38

Cases cited (10)

  • Chevron K Ltd (formerly Caltex Oil K Ltd) vs Harrison Charo wa Shutu
    (2016)
  • Ruth Wangari Muigai versus Edward Njuguna Mwangi
    (2015) eKLR
  • Sammy Likuyi Adiema versus Charles Shamwati Shisikani
    (2014) eKLR
  • Githu vs Ndeete
    (1984) KLR
  • Wangari Waithanje and 2 others vs Thathi Francis Muruariua
    (2017) eKLR
  • Mwinyi Hamisi Ali vs AG and another
    (1997) eKLR
  • M'Mbani M'Ithara v James Mbaka
    [2019] EKLR
  • Kweyu Vs Omutut
    [1990] KLR 709
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] EKLR
  • Rebecca Wanganga v Jane Wanjiru Njoroge & 3 Others
    [2018] EKLR (O.S.)
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (order that adverse possessor be registered as proprietor)

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, "Loise Muthoni Njagi v Margaret Ciambaka Mugambi [2019] KEELC 3346 (KLR)", Case Analysis (2019). Originating Summons dated 18/9/2018, filed 19/9/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3346/eng@2019-05-22

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