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ELCAllowedE.L.C. Case No. 69 of 2015 (Formerly Kerugoya ELC Case No. 69 of 2013)· [2019] KEELC 3820 (KLR)

Joachim Njuguna Mbugua & 2 others v Albert Ireri Muturi [2019] KEELC 3820 (KLR)

Environment and Land Court of Kenya
28 March 2019
YAY.M. Angima
1,312 words in judgment
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The bottom line

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A Kenyan court handed three families ownership of land they had openly occupied for over 12 years, even though someone else held the title.

What this practically means

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Executive summary

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By an originating summons under section 38 of the Limitation of Actions Act, three Plaintiffs sought a declaration that they had become entitled to 0.43 acres out of Nthawa/Gitiburi/1316 by adverse possession, that the Defendant's title be extinguished, an order compelling transfer, and costs. They alleged occupation since 1985 (with a witness placing residence from 1972), erecting permanent and rental houses and cultivating miraa, paw-paw, maize and beans. The Defendant, though filing a defence claiming clan allocation of the land and denying the developments, did not attend trial despite service. The court, Y.M. Angima J, framed two issues: whether adverse possession was proved, and costs. Restating the requirements in Kasuve v Mwaani Investments and related authorities, the court found the Plaintiffs in long, exclusive, open and uninterrupted possession inconsistent with the registered owner's title; the Defendant's absence left the evidence unchallenged and no interruption was shown. Judgment was entered for the Plaintiffs: they were declared entitled to be registered as proprietors of the 0.43 acres, the Land Registrar Mbeere was directed to register them, the Defendant was ordered to execute transfer documents failing which the Deputy Registrar would do so, and the Plaintiffs were awarded costs of the suit. Judgment delivered at Embu on 28 March 2019.

Key legal issues

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01

Whether the Plaintiffs proved adverse possession of 0.43 acres out of Nthawa/Gitiburi/1316

Holding

The Plaintiffs proved continuous, exclusive and uninterrupted possession and occupation for well over 12 years, extinguishing the Defendant's title

Reasoning

The 3rd Plaintiff testified the family had resided and developed the suit property for over 40 years, building dwelling and rental houses and cultivating crops. This possession was open, exclusive and inconsistent with the registered owner's title. The Defendant, though served, did not attend trial and his evidence was unchallenged; no interruption of possession was shown, and the pleaded clan dispute suit was not shown to affect the claim.

p. 2
02

Costs of the suit

Holding

Costs follow the event and the successful Plaintiffs were entitled to costs

Reasoning

The court applied the general rule that costs follow the event absent good reason to depart from it, and found no reason why the successful litigants should not be awarded costs of the suit.

p. 2

Legal principles established

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  • A claimant seeking title by adverse possession must prove exclusive, open possession as of right without interruption for 12 years, and such possession may be acquired for part of the land

Court orders

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  1. 1.The Plaintiffs have become entitled to be registered as proprietors of 0.43 acres out of Title No. Nthawa/Gitiburi/1316 on account of adverse possession in place of the Defendant
  2. 2.The Land Registrar Mbeere shall cause the Plaintiffs to be registered as proprietors of 0.43 acres out of Title No. Nthawa/Gitiburi/1316 in place of the Defendant
  3. 3.The Defendant shall execute all necessary documents to effect transfer of the suit property to the Plaintiff in default of which the Deputy Registrar of the court shall do so on his behalf
  4. 4.The Plaintiffs are awarded costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsection 38
  • Registered Lands Act (Cap 300)null

Cases cited (6)

  • Wambugu Vs Njuguna
    [1983] KLR 172
  • Githu Vs Ndeete
    [1984] KLR 776
  • Kasuve Vs Mwaani Investments Ltd & 4 Others
    [2004] 1 KLR 184
  • Kimani Ruchine Vs Swift Rutherfords & Co Ltd
    [1980] KLR 10
  • Wanja Vs Sakwa No. 2
    [1984] KLR 284
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap 22)

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, "Joachim Njuguna Mbugua & 2 others v Albert Ireri Muturi [2019] KEELC 3820 (KLR)", Case Analysis (2019). E.L.C. Case No. 69 of 2015 (Formerly Kerugoya ELC Case No. 69 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3820/eng@2019-03-28

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