Bernard Mbuti Kang’oroti v Njagi Gikundi & another [2019] KEELC 4017 (KLR)
The bottom line
#A Kenyan court awarded a buyer land through adverse possession, but only the parcels he could prove he actually occupied and developed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff was in continuous, exclusive possession of the suit properties adverse to the owner
The Plaintiff was in exclusive possession of parcel 30 from 1980, excluding the true owner; quit notices did not interrupt time, and the prior suit Embu PMCC No. 2002/1997 was filed by the Plaintiff himself, not the owner, so it could not interrupt limitation. The counterclaim was filed long after expiry of the limitation period.
Relying on Githu v Ndeete, the court held that time ceases to run only when the owner asserts his right by legal proceedings or effective entry, or when his right is admitted. Quit notices are ineffective assertion. The prior suit was the Plaintiff's own; the Defendant's 1997 counterclaim came after the 12-year period had expired, so no interruption was established.
Whether possession pursuant to a sale agreement with the owner could be adverse
Possession under a sale agreement may become adverse where the agreement is terminated or, notably, where it becomes void for lack of Land Control Board consent; permission is then terminated by operation of law.
The court held that permissive possession under a sale agreement ends upon rescission, repudiation, or operation of law. Since no LCB consent was obtained, the 1978 agreement became void, terminating the permission; the 12-year limitation period had lapsed by the time the originating summons was filed, establishing adverse possession.
Whether the Plaintiff was in possession of the whole of parcel 30, including the parcels sold to the 2nd Defendant
The claim succeeded only in respect of parcels 1831, 1832 and 1835; the Plaintiff failed to prove effective possession of parcels 1833 and 1834 at the time of their 2008 alienation to the 2nd Defendant.
The evidence was contradictory on the extent of occupation. The Deputy Registrar's site visit report did not indicate when developments occurred or which fell on parcels 1833 and 1834; some structures were recent, suggesting the Plaintiff accelerated development after filing suit. The court believed the 2nd Defendant's testimony that the parcels were undeveloped in 2008.
Costs of the suit
Although costs follow the event and the Plaintiff partially succeeded, each party was ordered to bear his own costs.
Applying section 27 of the Civil Procedure Act and Hussein Janmohammed & Sons v Twentsche Overseas Trading Co. Ltd, the court noted the general rule that a successful party should get costs unless the court directs otherwise for good reason. Since the Plaintiff only partially succeeded, each party was to bear his own costs.
Legal principles established
#- The giving of a notice to quit cannot be an effective assertion of right for the purpose of stopping the running of time under the Limitation of Actions Act.
- Where a purchaser is permitted to remain in possession in a controlled transaction which becomes void for lack of Land Control Board consent, such permission is terminated by operation of law and continued possession becomes adverse from the time the transaction becomes void.
- Adverse possession runs with the land and is an overriding interest under the Land Registration Act 2012 not required to be noted in the register.
- Costs follow the event under section 27 of the Civil Procedure Act, but the court may direct otherwise for good reason.
Court orders
#- 1.A declaration that the Plaintiff has become entitled to be registered as proprietor of Titles Nos. Mbeti/Gachuriri/1831, 1832 and 1835 by virtue of adverse possession under section 38 of the Limitation of Actions Act (Cap 22).
- 2.The Land Registrar, Mbeere shall cause the Plaintiff to be registered as the proprietor of Title Nos. Mbeti/Gachuriri/1831, 1832 and 1835.
- 3.Each party shall bear his own costs.
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (Cap 22), original jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Mbuti Kang’oroti v Njagi Gikundi & another [2019] KEELC 4017 (KLR)", Case Analysis (2019). ELC Case No. 24 of 2014 (Formerly HCCC No. 27 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4017/eng@2019-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.