Stephen Kathunkumi Marete v Florence Kauthu Mwithirwa & 2 others [2019] KEELC 3842 (KLR)
The bottom line
#A Kenyan court gave a land buyer ownership after 12 years of open occupation, ruling a later buyer who never inspected the land had no valid title.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established title by adverse possession
Yes. The Applicant took possession in March 2001 under a sale agreement, occupied openly, continuously and exclusively, and the 12-year period expired in March 2013 before suit was filed in July 2013.
The Applicant proved entry into possession in March 2001 pursuant to a sale agreement dated 25/1/2001, constructed a house and pit latrine, planted trees and bananas, fenced the land and settled his family. His occupation was corroborated by PW2 and admitted by the 1st Respondent. Possession was nec vi, nec clam, nec precario. Time ran from possession in March 2001 and vested in March 2013.
Whether breach of the sale agreement defeats an adverse possession claim
No. The purchaser's right under the agreement is adverse to the seller; breach does not interrupt the running of time.
The court held that a purchaser asserting rights under a sale agreement holds a right adverse to the registered owner, and the seller retains only the right to recover the balance of the purchase price subject to limitation. Breach of the agreement therefore does not nullify the adverse possession claim founded on possession.
Whether the 3rd Respondent is a bona fide purchaser for value without notice
No. By the date of his purchase in May 2013, title had already vested in the Applicant by adverse possession; the 3rd Respondent failed to carry out due diligence and took no valid interest.
The 3rd Respondent purchased on 31/5/2013 but found the Applicant in occupation with a house, trees and bananas on the land. Applying the Samuel Kamere test, he failed to prove due diligence. Adverse possession had crystallised in March 2013, before registration of his title in July 2013, so he holds any title in trust for the Applicant.
Legal principles established
#- A purchaser in possession after paying part of the purchase price is a person in whose favour the limitation period runs; time runs from taking possession under the sale agreement
- A purchaser who fails to inspect the land and discover the person in occupation risks his title and cannot be a bona fide purchaser without notice
- Where adverse possession has crystallised in favour of a third party before registration, the registered owner holds the land in trust for the adverse possessor
Court orders
#- 1.A declaration that Stephen Kathunkumi Marete has become entitled by way of Adverse Possession of parcel No. NYAKI/MUNITHU/2027 measuring 0.405 Ha or thereabouts
- 2.An order that the Land Registrar, Meru Central District do cancel the registration of Respondent Stanley Gaturu M'Nabea and register Stephen Kathunkumi Marete as the Sole proprietor
- 3.The Deputy Registrar of the Court is mandated to execute and sign all necessary documents to effect the registration
- 4.Costs of the suit to be borne by the Defendants jointly and severally
- Jurisdiction invoked
- Sections 7, 13, 17 and 38 of the Limitation of Actions Act (Cap 22); Section 38(1) confers jurisdiction on the High Court (and by extension this Court) to order registration of an adverse possessor
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Kathunkumi Marete v Florence Kauthu Mwithirwa & 2 others [2019] KEELC 3842 (KLR)", Case Analysis (2019). Originating Summons dated 3/7/2013 (amended 1/3/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3842/eng@2019-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.