Scolastica Wairimu Kiragu (suing as a legal representative of Scholar Wairimu Kiragu, Deceased) v Francis Ndichu Kimwaki (sued as a legal representative of Stephen Kimwaki Kiragu, Deceased) [2019] KEELC 3479 (KLR)
The bottom line
#The Environment and Land Court dismissed a family land claim because licensed occupation doesn't count toward Kenya's 12-year adverse possession period.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved adverse possession of the suit properties
The claim failed; the plaintiff's possession was permissive and the suit was premature
The court found the plaintiff's evidence on when and how she entered the suit properties conflicting and unreliable, with no documentary proof of any purchase. The defendant's account that he purchased the properties in 1978 and 1979, planted the tea and invited the plaintiff's husband to occupy in 1982 as a worker was credible and unshaken. Occupation prior to 18th November 1991 was by consent; limitation therefore ran from termination of the licence on 18th November 1991, and the suit filed on 21st September 1992 came before 12 years had elapsed.
Whether the plaintiff's alleged purchase of the suit properties was proved
The alleged purchase was not proved
The plaintiff's evidence on the transaction was inconsistent: the price varied between Kshs 200,000, 230,000, 240,000 and 300,000, the vendor was variously said to be the defendant or Mbiyu Koinange, and no written agreement or documentary evidence of payment existed. The bank statements showed no transfers to the defendant. The court found it improbable that Mbiyu Koinange would transfer the land to the defendant in 1978-1979 if the plaintiff's husband had bought and paid for it in 1974.
When time for adverse possession began to run
Time began to run on 18th November 1991 when the defendant terminated the plaintiff's licence to occupy
Relying on Wambugu v Njuguna, the court held that possession with leave and licence becomes adverse only upon determination of the licence. The demand letter produced in evidence showed the defendant terminated the plaintiff's licence on 18th November 1991, so the suit filed on 21st September 1992 preceded the lapse of even one year, let alone the statutory twelve.
Legal principles established
#- A registered owner may not bring an action to recover land after twelve years, at the expiry of which his title is extinguished, and a person in peaceful continuous possession without permission who has done acts inconsistent with the owner's enjoyment may apply to be registered as owner
- Possession must be exclusive, continuous, open and without force, secrecy or evasion to found a claim in adverse possession
- Possession enjoyed with the leave and licence of the owner does not become adverse until the licence is determined
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.Each party shall bear its own costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over claims relating to land; suit commenced by Originating Summons under the law on adverse possession (sections 7 and 38 of the Limitation of Actions Act, Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Scolastica Wairimu Kiragu (suing as a legal representative of Scholar Wairimu Kiragu, Deceased) v Francis Ndichu Kimwaki (sued as a legal representative of Stephen Kimwaki Kiragu, Deceased) [2019] KEELC 3479 (KLR)", Case Analysis (2019). Originating Summons dated 11th August, 1992. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3479/eng@2019-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.