James Kariuki Murete v Nicholas Nguthi Kivinda & another [2019] KEELC 3982 (KLR)
The bottom line
#An Embu court dismissed a Kenyan landowner's adverse possession claim because he had occupied the land for 11 years and 6 months, just short of the required 12 years.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved adverse possession of the suit property
The claim failed because the statutory 12-year period was not met; time could only run from 8th November 1995 when the deceased lost his title, and only about 11 years and 6 months had elapsed by the filing of the suit. Possession was also interrupted by the 1st Defendant's eviction suit in 2004.
The deceased was the first registered proprietor of parcel 886 and was in possession; the Plaintiff occupied as a child with the deceased's consent, so time could not run against the deceased. Time began on 8th November 1995 upon registration of the 1st Defendant. By 8th May 2006, only 11 years and 6 months had lapsed. Further, the 1st Defendant's 2004 eviction suit interrupted possession at about 9 years. The elements of adverse possession (exclusive, open possession nec vi, nec clam, nec precario for 12 years) were therefore not satisfied.
Whether allegations of land grabbing and fraudulent acquisition of title could be determined in a section 38 originating summons
No. Such matters are not legitimate issues for determination in an originating summons brought under section 38 of the Limitation of Actions Act, whose only subject is adverse possession.
Relying on Wasui v Musumba, the court held that the only relief that can be sought in such an originating summons is registration as proprietor by virtue of adverse possession. The Plaintiff's attack on the Defendants' title via fraud and land-grabbing allegations fell outside the scope of the summons, and the court declined to adjudicate them.
Costs of the suit
Costs awarded to the successful 1st and 2nd Defendants following the event under section 27 of the Civil Procedure Act.
Although costs are discretionary, the general rule is that they follow the event. The court found no good reason to deprive the successful Defendants of their costs, citing Hussein Janmohammed & Sons v Twentsche Overseas Trading Co. Ltd.
Legal principles established
#- The only legitimate question for determination in an originating summons under section 38 of the Limitation of Actions Act is adverse possession; claims of fraud or overriding interests cannot be adjudicated therein
- Time for adverse possession ceases to run when the owner asserts his right, as by taking legal proceedings or making an effective entry into the land
- A change of ownership of land does not affect the running of time for adverse possession since it is a prescriptive right running with the land
- Costs follow the event under section 27 of the Civil Procedure Act and a successful party should be awarded costs absent good reason to the contrary
Court orders
#- 1.The Plaintiff's originating summons dated 25th April 2006 and filed on 8th May 2006 is dismissed
- 2.Costs awarded to the 1st and 2nd Defendants
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kariuki Murete v Nicholas Nguthi Kivinda & another [2019] KEELC 3982 (KLR)", Case Analysis (2019). E.L.C. Case No. 112 of 2014 (Formerly Kerugoya ELC Case No. 515 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3982/eng@2019-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.