African Brotherhood Church Registered Trustees v Silas Ngutiku M’kirimunya & another [2019] KEELC 4321 (KLR)
The bottom line
#A Kenyan court dismissed a church's land ownership claim because there was no written sale agreement and living on land with the owner's permission cannot count toward adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established adverse possession over the suit property
The claim fails; the plaintiff's occupation was permissive and no valid written sale agreement was proved
The plaintiff relied on minutes, a land control board consent, transfer documents and a green card, but produced no written sale agreement as required under section 3 of the Law of Contract Act. In the absence of a valid agreement recognized in law, the 1st defendant's permission for the plaintiff to occupy and build on the land means possession was permissive. Permissive possession does not become adverse while the permission subsists, and the two concepts cannot co-exist. The plaintiff therefore did not prove dispossession or discontinuance of the owner's possession for the statutory period.
Whether the plaintiff proved an enforceable contract for the sale of the suit land
No; no written and attested sale agreement was produced
The plaintiff alleged purchase of the land and full payment of the purchase price but produced no agreement of sale as required by law. The defendants pointed out that no evidence confirmed payment in part or in full of the purchase price of Kshs.180,000 and no sale agreement was produced. The court observed that the plaintiff avoided enforcing the purported agreement, presumably because such a right is unenforceable for want of a valid written contract, and was circumventing the law by invoking adverse possession instead.
Standard of proof applicable to the plaintiff's claim
The plaintiff failed to discharge the burden of proving the claim on the required standard
The defendants submitted that the plaintiff failed to establish the case on the required standard, citing several authorities. The court, applying the guiding principles in Wambugu v Njuguna (1983) KLR 172 on dispossession, discontinuance and permissive possession, found the plaintiff had not proved entitlement to the suit property by adverse possession and dismissed the suit.
Legal principles established
#- Possession does not become adverse before the end of the period during which the possessor is permitted to occupy the land; permissive occupation cannot found a claim in adverse possession
- No suit shall be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties, and each signature attested by a witness (Law of Contract Act, section 3)
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcel Abothuguchi/Katheri/3930 (originating summons for adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African Brotherhood Church Registered Trustees v Silas Ngutiku M’kirimunya & another [2019] KEELC 4321 (KLR)", Case Analysis (2019). Originating Summons dated 22nd January 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4321/eng@2019-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.