Emily Maina & another v Eliud K. Kitur [2019] KEELC 4952 (KLR)
The bottom line
#A Kenyan family who openly occupied and farmed 0.9 acres for decades won ownership by adverse possession, extinguishing the registered owner's title.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants proved adverse possession over 0.9 acres of the suit property
The Applicants satisfied all elements of adverse possession, having been in open, peaceful and uninterrupted possession of 0.9 acres since the 1970s
The evidence was uncontroverted: the Respondent neither entered appearance nor filed a response and did not attend trial. The Applicants testified with one witness that they purchased 0.9 acres around 1970, took possession, cultivated it, planted trees and fodder grass, and erected residential houses. Their occupation was never suggested to be forcible, secretive or with the owner's consent. Applying the requirements in the cited authorities, the court found the 12-year period had run against the registered owner.
Whether the Applicants are entitled to the reliefs sought, including extinction of the Respondent's title and registration
The Respondent's title to the 0.9 acres in occupation by the Applicants was extinguished by operation of law and the Applicants are entitled to be registered as proprietors
Once adverse possession for the statutory period was established, the registered owner's title to the portion in occupation was extinguished under the Limitation of Actions Act (Cap 22). Under section 38, the court granted the declaration that the Applicants had become entitled to be registered as proprietors of the 0.9 acres, and facilitated registration by having the Deputy Registrar execute the necessary documents for the absent Respondent.
Who shall bear the costs of the suit
Each party to bear his own costs
Although costs normally follow the event under section 27 of the Civil Procedure Act, as confirmed in Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, the court exercised its discretion to depart from the general rule because the Respondent did not file a response to the originating summons and did not attend court for the trial. Accordingly, each party was directed to bear their own costs despite the Applicants' success.
Legal principles established
#- To be entitled to land by adverse possession the claimant must prove exclusive, open possession as of right and without interruption for 12 years, and such title may be acquired for part of the land
- Costs follow the event unless the court for good reason directs otherwise
Court orders
#- 1.Declared that the Respondent's title to a portion of 0.9 acres out of Title No. Nandi/Kokwet/559 has become extinguished by operation of law under the Limitation of Actions Act (Cap 22)
- 2.Declared that the Applicants have become entitled to be registered and shall be registered as proprietors of a portion of 0.9 acres out of Title No. Nandi/Kokwet/559 on account of adverse possession under section 38 of the Limitation of Actions Act (Cap 22)
- 3.The Deputy Registrar of the court shall sign and execute all necessary forms, documents and papers on behalf of the Respondent to facilitate registration of the Applicants as proprietors of 0.9 acres out of the suit property
- 4.Each party shall bear his own costs
- Jurisdiction invoked
- Order 37 Rule 7 (1) (2) & (3) of the Civil Procedure Rules; section 38 of the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emily Maina & another v Eliud K. Kitur [2019] KEELC 4952 (KLR)", Case Analysis (2019). ELC Case No. 732 of 2012 (formerly Civil Suit No. 113 of 2011 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4952/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.