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ELCDismissedMeru ELC Originating Summon dated 25th July 2016· [2019] KEELC 3774 (KLR)

Stellah Nduru Ichunge & another v Ezekiel Nkamani M’ichunge & another [2019] KEELC 3774 (KLR)

Environment and Land Court
25 April 2019
LMLucy N. Mbugua
994 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Meru court dismissed two sisters' bid to claim family land by adverse possession because living on family land counts as permission, not a hostile claim.

What this practically means

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Executive summary

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Two sisters filed an Originating Summon dated 25th July 2016 claiming 1.5 acres out of L.R No. Abothuguchi/Mariene/459, registered in the names of their three brothers, by adverse possession. They alleged exclusive, actual, open and uninterrupted occupation since 1989, with improvements including a permanent house, electricity and water. The defendants, who inherited the land under their father's will through a succession cause, denied the claim and asserted that the 1st plaintiff left home in 1984, trading in town, and only returned around 2009-2010, while the 2nd plaintiff was absorbed into the civil service in 1987, works in Nairobi and has her permanent home in Utawala, Embakasi. The defendants tendered no evidence but attended trial. The court framed a single issue: whether the plaintiffs had acquired title by adverse possession. It set out the four essential ingredients, including non-permissive, hostile or adverse use and continuous occupation for at least twelve years. Although the plaintiffs relied on Gabriel Mbui v Mukindia Maranya to argue that ordinary absences for work or business do not interrupt possession, the court, drawing on Virginia Wanjiku Mwangi, found that any occupation by the plaintiffs was with the tacit permission of their brothers as family members. The hostile, adverse element was therefore absent. The suit was dismissed on 25th April 2019 with each party bearing their own costs.

Key legal issues

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01

Whether the plaintiffs had acquired title by adverse possession to 1.5 acres of the suit land

Holding

Suit dismissed - the plaintiffs failed to prove non-permissive, hostile or adverse occupation; their occupation was with the tacit permission of their brothers

Reasoning

The court set out the four ingredients of adverse possession under section 38 of the Limitation of Actions Act. The defendants tendered no evidence, but on the plaintiffs' own case the sisters left home for work and business and lived with or near family. Occupying as siblings within a family arrangement was held to be permissive occupation, following the reasoning in Virginia Wanjiku Mwangi. The adverse element was therefore missing.

p. 2

Legal principles established

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  • Occupation under a licence or with the owner's permission does not found a claim in adverse possession
  • The essential ingredients of adverse possession are exclusive use and possession, open and notorious use, non-permissive/hostile/adverse use, and continuous uninterrupted use for at least 12 years

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Section 38 of the Limitation of Actions Act - claim for registration as proprietor by adverse possession filed in the ELC

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, "Stellah Nduru Ichunge & another v Ezekiel Nkamani M’ichunge & another [2019] KEELC 3774 (KLR)", Case Analysis (2019). Meru ELC Originating Summon dated 25th July 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3774/eng@2019-04-25

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