Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedOriginating Summons dated 3/7/2013 (amended 1/3/2018)· [2019] KEELC 3842 (KLR)

Stephen Kathunkumi Marete v Florence Kauthu Mwithirwa & 2 others [2019] KEELC 3842 (KLR)

Environment and Land Court
8 April 2019
3,186 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

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

#
By an Originating Summons dated 3/7/2013 and amended on 1/3/2018, the Applicant sought a declaration of title by adverse possession over parcel NYAKI/MUNITHU/2027 and an order directing the Land Registrar, Meru Central District, to cancel the 3rd Respondent's registration and register him as sole proprietor. The Applicant proved that he bought the land from the 1st Respondent under a sale agreement dated 25/1/2001 for Kshs 110,000/-, paid Kshs 70,000/- as a down payment, and took possession in March 2001, constructing a house and pit latrine, planting trees and bananas, fencing and settling his family. The 1st Respondent transferred the land to the 2nd Respondent in 2009, who sold to the 3rd Respondent in May 2013 while the Applicant remained in occupation. The court applied ss.7, 13, 17 and 38 of the Limitation of Actions Act and held that time ran from March 2001 when the Applicant took possession, so that adverse possession crystallised in March 2013 before the suit was filed. The court rejected the argument that breach of the sale agreement defeated the claim, holding the purchaser's right was adverse to the seller. The 3rd Respondent failed the bona fide purchaser test, having not inspected the land before purchase; any title registered in his name was held in trust for the Applicant. Judgment was delivered at Meru on 8/4/2019 by J G Kemei, J, allowing the claim with costs against the Defendants jointly and severally.

Key legal issues

#
01

Whether the Applicant established title by adverse possession

Holding

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.

Reasoning

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.

p. 3
02

Whether breach of the sale agreement defeats an adverse possession claim

Holding

No. The purchaser's right under the agreement is adverse to the seller; breach does not interrupt the running of time.

Reasoning

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.

p. 3
03

Whether the 3rd Respondent is a bona fide purchaser for value without notice

Holding

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.

Reasoning

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.

p. 4

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. 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. 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. 3.The Deputy Registrar of the Court is mandated to execute and sign all necessary documents to effect the registration
  4. 4.Costs of the suit to be borne by the Defendants jointly and severally

Authorities

#

Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13(1)-(3)
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 38(1) and (2)
  • Land Registration Act, 2012Section 28(h)
  • Land Registration Act, 2012Section 7
  • Registration of Land Act No 6 of 2012general (anchoring adverse possession)

Cases cited (6)

  • Kimani Ruchire –v– Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
  • Kasuve Vs Mwaani Investments Limited & 4 others
    1 KLR 184
  • Public Trustee – v – Wanduru
    (1984) KLR 314
  • Mbugua Njuguna v Elijah Mburu Wanyoike & Another
    Civil Appeal No. 27 of 2002
  • Mweu v. Kiu Ranching & Farming Co-operative Society Ltd.
    [1985] KLR 430
  • Samuel Kamere Vs Land Registrar
    (2015) EKLR
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.