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ELCDismissedOriginating Summons dated 12/01/2010 (Meru)· [2019] KEELC 4281 (KLR)

Stephen Mwithia M’ruuti v Joshua Muthuku & 2 others [2019] KEELC 4281 (KLR)

Environment and Land Court
1 March 2019
MNMwangi Njoroge
2,113 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff filed an Originating Summons dated 12/01/2010 seeking to be declared legal owner of Land Parcel No. Nyaki/Thuura/2465 by adverse possession and to be issued with a title deed. He claimed he bought land from M'Irera Ngaruthi (deceased) around 1975, paid in full, and occupied and developed it until August 2002 when the 3rd defendant, who had bought parcel 2465 from the deceased's administrators in a succession cause, evicted him and destroyed his property. The 3rd defendant contended the plaintiff never bought the suit land, that he bought it from the administrators in 2002, obtained title and has been in possession since, and that related applications by the plaintiff in the succession cause had been dismissed. The plaintiff's own evidence was that he had been dispossessed in 2002 and was no longer on the land. The court framed two issues: entitlement to the land by adverse possession, and the orders to issue. It held that peaceful and uninterrupted occupation is an essential ingredient of adverse possession, and, following John Nyabuto v James Ombaye Orori, that a party already evicted cannot sustain such a claim. Since the eviction admittedly occurred in 2002, before both this suit and CMCC 773/03 Meru were filed, the claim was incompetent. The court dismissed the Originating Summons and made no orders as to costs.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession over Land Parcel No. Nyaki/Thuura/2465

Holding

No - the claim fails because the plaintiff admitted he was evicted in 2002 and was no longer in possession, so the possession was interrupted.

Reasoning

Peaceful and uninterrupted occupation is an essential ingredient of adverse possession. The plaintiff testified that he was dispossessed by the 3rd defendant in 2002 when he was chased off the land, the fence was destroyed and crops cut. The eviction was admittedly in 2002, both this suit (2010) and CMCC 773/03 Meru having been filed after possession ceased. Following John Nyabuto v James Ombaye Orori, an evicted party cannot sustain an adverse possession claim; the claim was therefore incompetent and was dismissed.

p. 3

Legal principles established

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  • A party who has already been evicted from the land cannot sustain a claim for adverse possession; eviction interrupts possession.

Court orders

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  1. 1.Dismissal of the Originating Summons dated 12th January 2010
  2. 2.No orders as to costs

Authorities

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Cases cited (1)

  • John Nyabuto Vs James Ombaye Orori and Another
    (2017) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over land claims, including adverse possession (not expressly stated in the judgment)

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, "Stephen Mwithia M’ruuti v Joshua Muthuku & 2 others [2019] KEELC 4281 (KLR)", Case Analysis (2019). Originating Summons dated 12/01/2010 (Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4281/eng@2019-03-01

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