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ELCDismissedAmended Originating Summons dated 22/3/18 (Murang'a ELC)· [2019] KEELC 3599 (KLR)

George Gichohi Kariuki & 3 others v Francis Wachira Mukami & 4 others [2019] KEELC 3599 (KLR)

Environment and Land Court
25 April 2019
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan family lost their land claim because occupation was allowed by the owner with permission, not adverse possession.

What this practically means

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Executive summary

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The Plaintiffs, children and widow of Peter Githua Kariuki (deceased), claimed 0.8 hectares out of Fort Hall LOC14/KIRU/1508 registered in the name of the 1st Defendant. They alleged that in the 1990s the 1st Defendant guaranteed a loan for one Hon Kimondo Kiruhi with Kenya Commercial Bank secured by the suit land; the borrower defaulted and the deceased repaid the loan to redeem the title, in consideration of which the 1st Defendant agreed to sell him 2 acres. The family occupied the land from 1998, planted tea and picked it until 2015, when the 1st Defendant subdivided and registered the land in the names of his wife and children and denied them access. The Plaintiffs sought a declaration of adverse possession, subdivision and transfer, eviction, alternatively a refund of Kshs 210,000 with interest, and loss of tea income. The 1st Defendant denied any sale, maintaining that he permitted the deceased to pick tea out of gratitude. The court framed six issues and found no sale proved, the draft Land Control Board consent being unsigned and no consent having been obtained. Adverse possession failed because occupation was permissive, applying Samuel Miki Waweru v Jane Njeri Richu and Malcom Bell v Daniel Toroitich Arap Moi. The fraud allegation was not pleaded or proved in specie. The compensation claim was time-barred under section 4 of the Limitation of Actions Act. The suit was dismissed with each party bearing their own costs, the parties being related.

Key legal issues

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01

Whether a sale of 0.8 ha was proved between the Plaintiffs' father and the 1st Defendant

Holding

No sale, oral or written, was proved; the draft Land Control Board consent was unsigned by the purchaser and no consent was obtained

Reasoning

The Plaintiffs asserted an oral agreement whereby their father repaid the 1st Defendant's guaranteed bank loan in consideration for a transfer of 2 acres. The 1st Defendant denied any sale, saying the tea-picking was permitted out of gratitude. The draft LCB consent relied on was unsigned on the purchaser's part and no evidence showed consent was obtained. The court found the Plaintiffs failed to discharge the burden of proof on the alleged sale.

p. 3
02

Whether the Plaintiffs proved adverse possession

Holding

No; occupation was with the express permission of the 1st Defendant, so possession never became adverse

Reasoning

The Plaintiffs claimed occupation from 1998 to 2015 under an alleged agreement/promise to sell. The court set out the conditions for adverse possession, including possession without permission, and relied on Samuel Miki Waweru v Jane Njeri Richu and Malcom Bell v Daniel Toroitich Arap Moi. Since the 1st Defendant permitted the father to pick tea, possession was permissive and adverse possession could not be sustained.

p. 4
03

Whether fraud in the subdivision and transfer was proved

Holding

No; fraud must be pleaded, particularised and proved and cannot be inferred

Reasoning

The court stated the trite position that fraud is a serious quasi-criminal allegation requiring proof in specie. No evidence was adduced to show the subdivision and transfer to the Defendants' names was fraudulent, so the allegation failed.

p. 4
04

Whether the Plaintiffs were entitled to compensation (refund of Kshs 210,000 and loss of tea income)

Holding

No; the contract claim was time-barred under section 4 of the Limitation of Actions Act and no adverse possession was proved

Reasoning

Claims in contract must be brought within 6 years; the deceased died in 1999 so any claim on the arrangement was time-barred by 2005. Compensation for unpicked tea failed for lack of adverse possession, and the Plaintiffs had an injunction in their favour during the period, making it inconceivable they voluntarily left the land.

p. 4

Legal principles established

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  • A claim of adverse possession cannot succeed where possession is held with the permission of the owner
  • Fraud must be pleaded, particularised and proved and cannot be inferred by the court
  • Conditions for adverse possession to mature into title

Court orders

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  1. 1.The Plaintiffs' claim fails and is dismissed.
  2. 2.Each party to meet the costs of their own suit.

Authorities

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Legislation

  • Limitation of Actions Act Cap 22sections 7, 37, 38 and 4
  • Land Registration Act No 3 of 2012section 28(e)
  • Law of Contract Actsection 3(3)

Cases cited (3)

  • Samuel Miki Waweru v Jane Njeri Richu
    Civil Appeal No. 122 of 2001
  • Jandu v Kirpal
    [1975] EA 225
  • Malcom Bell v Daniel Toroitich Arap Moi & Another
    [2012] eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; claim anchored on sections 7, 37 and 38 of the Limitation of Actions Act Cap 22 and section 28(e) of the Land Registration Act No 3 of 2012

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, "George Gichohi Kariuki & 3 others v Francis Wachira Mukami & 4 others [2019] KEELC 3599 (KLR)", Case Analysis (2019). Amended Originating Summons dated 22/3/18 (Murang'a ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3599/eng@2019-04-25

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