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ELCDismissedELC Case No 12 of 2018 (OS)· [2019] KEELC 3539 (KLR)

Marao Gitahi v Gerald Wambui Kiragu [2019] KEELC 3539 (KLR)

Environment and Land Court
7 May 2019
4,184 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A man who occupied land for 36 years lost his claim because it was still registered to the Settlement Fund Trustees, not the seller.

What this practically means

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Executive summary

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By an Originating Summons dated 10 February 2018, Marao Gitahi claimed to be entitled to be registered as the sole absolute proprietor of LR No. Nyandarua/Ndemi/930 (approximately 5.4 hectares) by adverse possession against the registered allottee, Gerald Wambui Kiragu. The plaintiff's evidence was that on 22 December 1983 he purchased 5 acres from the defendant for Ksh 20,000/= under a written agreement drawn by an advocate, paid the purchase price, and took possession, building, cultivating and planting trees on the land for about 36 years without disturbance. He relied on a receipt dated 9 February 1982 showing the defendant's deposit on a Settlement Fund Trustees loan, a list of beneficiaries of the Ndemi settlement scheme, and an official search showing the land registered in the name of the Settlement Fund Trustees since 2 April 1992. The defendant never entered appearance despite substituted service, and the matter proceeded to formal proof. The court framed three issues: whether the defendant was the proprietor of the suit property; whether the plaintiff had acquired it by adverse possession; and whether transfer should be ordered. Oundo J held that the plaintiff had failed to prove the defendant's registered ownership, producing no title document or certified extract of title, and that the land remained registered in the name of the Settlement Fund Trustees. Applying Section 41 of the Limitation of Actions Act and following Samuel Ndungu Gitu v Danson Ndungu and Boniface Oredo v Wabomba Mukile, the court held that adverse possession cannot run against land still registered under the Settlement Fund Trustees, the Trustees' interest being protected by Section 175 of the repealed Agriculture Act. The plaintiff's long occupation therefore counted for nothing, and the suit was dismissed with no cost.

Key legal issues

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01

Whether the Defendant was the registered proprietor of the suit land

Holding

The Plaintiff failed to prove the Defendant's ownership; the official search showed the land still registered in the name of the Settlement Fund Trustees

Reasoning

To claim adverse possession the plaintiff must prove by evidence that the defendant is the registered proprietor. The court expected a title document or certified extract of title. The search produced showed registration in the name of the Settlement Fund Trustees since 2 April 1992, and no evidence showed any transfer to the Defendant, who had only paid a deposit of Ksh 325/= on the settlement loan.

p. 4
02

Whether the Plaintiff had acquired title by adverse possession

Holding

No - possession since 1983 counted for nothing because the land remained Government/Settlement Fund Trustees land when the sale agreement was entered into, and Section 41 of the Limitation of Actions Act excludes Government land

Reasoning

The sale agreement of December 1983 predated the registration to the Settlement Fund Trustees in 1992, so the Defendant had no title to pass and the land was government land. Section 41 excludes Government land from the Act, and Section 175 of the repealed Agriculture Act protected the Trustees' interest from limitation. Adverse possession against an allottee can only run after title is acquired from the Trustees.

p. 5

Legal principles established

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  • Adverse possession cannot run against land still registered in the name of the Settlement Fund Trustees; time begins to run against an allottee only after he acquires title from the Settlement Fund Trustees
  • The interest of the Settlement Fund Trustees in land is not extinguishable under the Limitation of Actions Act by virtue of Section 175 of the repealed Agriculture Act

Court orders

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  1. 1.The Plaintiff's suit was dismissed with no cost.

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 7
  • Limitation of Actions Act (Cap 22)Section 13
  • Limitation of Actions Act (Cap 22)Section 17
  • Limitation of Actions Act (Cap 22)Section 37
  • Limitation of Actions Act (Cap 22)Section 38
  • Limitation of Actions Act (Cap 22)Section 41
  • Agriculture Act (Cap 318, now repealed)Section 167
  • Agriculture Act (Cap 318, now repealed)Section 175
  • Agriculture and Food Authority Act (No 13 of 2013)repealing the Agriculture Act
  • Government Lands Act (Cap 280)referred to in Section 41
  • Mining Act (Cap 306)referred to in Section 41
  • Mineral Oil Act (Cap 307)referred to in Section 41
  • Water Act (Cap 372)referred to in Section 41
  • Registered Land Act (Cap 300)referred to in Section 41 and Section 37
  • Registration of Titles Actreferred to in Section 37
  • Land Titles Actreferred to in Section 37

Cases cited (7)

  • Samwel Nyakengo vs Samwel Orucho Onyaru
    [2010] eKLR
  • Peter Mbiri Michuki vs Samwel Mugo Michuki
    [214] eKLR
  • Lawrence Muiruri Njuguna vs Charles Mwenga Mulwa
    [2017] eKLR
  • Benjamin Kamau Murma & Others vs Gladys Njeri
    C A No. 213 of 1996
  • Littledale vs Liverpool College
    (1900)1 Ch.19, 21
  • Samuel Ndungu Gitu v Danson Ndungu & 2 others
    [2001] eKLR
  • Boniface Oredo vs Wabomba Mukile
    Civil Appeal No. 170 of 1989 (unreported)
Jurisdiction invoked
Section 37 and 38 of the Limitation of Actions Act (Cap 22) - application to the High Court (now Environment and Land Court) for registration as proprietor by adverse possession

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Marao Gitahi v Gerald Wambui Kiragu [2019] KEELC 3539 (KLR)", Case Analysis (2019). ELC Case No 12 of 2018 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3539/eng@2019-05-07

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