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ELCPartially AllowedNot stated in excerpt· [2019] KEELC 3544 (KLR)

James Kamande Wainaina v Peter Wainaina Mburu [2019] KEELC 3544 (KLR)

Environment and Land Court
2 May 2019
JKJ. G. Kemei
1,887 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Murang'a court gave a man 2 acres of family land through a customary trust, but refused his adverse possession claim because his own caution showed the owner's permission.

What this practically means

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Executive summary

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The Plaintiff, uncle of the Defendant, sued by plaint filed on 9 November 2017 seeking (a) a declaration that the Defendant holds 2 acres out of LOC17/KAMAHUHA/203 in trust for him, with the trust dissolved and the 2 acres transferred to him, and (b) alternatively a declaration of adverse possession over the same 2 acres, plus costs. The suit land was registered in the name of the Defendant's late father, Isaac Mburu Wainaina, since 26 April 1974. The Defendant denied the trust, denied being properly sued, and raised res judicata and the procedural impropriety of pleading adverse possession in a plaint. Evidence established that the original owner, Njuguna Kimindiri, a childless uncle, settled the Plaintiff and his two brothers on the land; the Plaintiff has occupied since 1969, built a house in 1972 and planted trees and coffee. The Defendant produced no evidence of purchase. The court held that the land was family land and that a customary trust, an overriding interest under Section 28 of the Land Registration Act, subsisted over 2 acres in favour of the Plaintiff, applying the Supreme Court's Kieba guidelines. However, the adverse possession claim failed because the Plaintiff's own 2004 caution claimed a licensee's interest, which denotes permission and defeats adverse possession. Judgment was entered in terms of prayer 1(a) only; each party was ordered to bear their own costs given their family relationship. The court also confirmed the Defendant, as admitted legal representative of the estate, was properly sued.

Key legal issues

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01

Adverse possession

Holding

Claim fails because the Plaintiff's own caution claimed licensee's interest, denoting permission

Reasoning

The Plaintiff had registered a caution in 2004 claiming licensee's interest. Permission to occupy is inconsistent with adverse possession, so possession does not become adverse while permission subsists. The court held the Plaintiff bound by his own pleadings and evidence.

p. 2
02

Customary trust

Holding

Trust proved to the extent of 2 acres; the registered owner holds it in trust for the Plaintiff

Reasoning

Applying Section 28 of the Land Registration Act and the Isack M'Inanga Kieba elements, the court found the land was family land settled on the three brothers by the original owner, with no evidence of purchase. The Defendant, as legal representative of the estate, was properly sued and holds 2 acres in trust.

p. 2
03

Proper party as legal representative

Holding

Defendant properly sued as legal representative of his deceased father's estate

Reasoning

The Defendant admitted being the legal administrator substituted in Succession Cause No. 202 of 2004, Murang'a High Court, making him the proper party to the trust claim.

p. 2

Legal principles established

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  • A claim of adverse possession cannot succeed where possession is with the permission of the owner
  • Customary trust is an overriding interest under Section 28 of the Land Registration Act, whether or not the claimant is in occupation

Court orders

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  1. 1.Judgment entered in terms of prayer 1(a): a declaration that the Defendant holds 2 acres out of LOC17/KAMAHUHA/203 in trust for the Plaintiff, dissolution of the trust and transfer of the 2 acres to the Plaintiff
  2. 2.Claim for adverse possession dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Land Registration ActSection 28

Cases cited (5)

  • Samuel Miki Waweru v Jane Njeri Richu
    Civil Appeal No. 122 of 2001
  • Jandu v Kirpal
    [1975] EA 225
  • Isack M'Inanga Kieba v Isaaya Theuri M'Lintari & Isack Ntongai M'Lintari
    SCOK Petition 10 of 2015
  • Peter Gitonga v Francis Maingi M'Ikiara
    Meru HC.CC No. 146 of 2000
  • Kiarie v. Kinuthia
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (suit by plaint)

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, "James Kamande Wainaina v Peter Wainaina Mburu [2019] KEELC 3544 (KLR)", Case Analysis (2019). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3544/eng@2019-05-02

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