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ELCDismissedE.L.C. Case No. 256 of 2015 (Formerly Kerugoya ELC No. 763 of 2013)· [2019] KEELC 4990 (KLR)

Florence Wanjiru Mati v Fredrick Njagi Mburia [2019] KEELC 4990 (KLR)

Environment and Land Court of Kenya
17 January 2019
2,023 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu Environment and Land Court dismissed a woman's bid to claim land by adverse possession because she failed to prove 12 uninterrupted years of occupation.

What this practically means

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Executive summary

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The Plaintiff filed an originating summons under sections 7, 37 and 38 of the Limitation of Actions Act claiming title to parcel No. Kagaari/Weru/4149 by adverse possession, asserting occupation since 1976 and cultivation of coffee, bananas and other crops, and seeking registration as absolute proprietor and an order compelling the Defendant to execute transfer documents. The Defendant denied the Plaintiff's occupation, contending she resided in Kirinyaga County and that it was his son's wife who occupied the land; he had purchased the property in 1995 and had already obtained an eviction order against the Plaintiff in Embu PMCC No. 368 of 1995, issuing in 2003. The court identified the principal question as whether the Plaintiff had established adverse possession. Applying the settled elements from Kasuve v Mwaani Investments, Githu v Ndeete and Wilson Kazungu Katana, the court found the Plaintiff had not proved open, exclusive and uninterrupted possession for at least 12 years. The Assistant Chief's letter placed the Plaintiff in Kirinyaga County; she could not speak Kiembu; and the green card showed the property first registered in December 1994 and transferred to the Defendant on 19th September 1995, so time could only run from then and fell short of 12 years by the 2006 filing. Further, the Defendant's 2003 eviction order was an assertion of right that interrupted possession. The originating summons was dismissed in its entirety with costs to the Plaintiff to bear.

Key legal issues

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01

Whether the Plaintiff proved adverse possession for the statutory minimum of 12 years

Holding

The Plaintiff did not prove continuous, exclusive and adverse possession for 12 years; her claimed occupation since 1976 was contradicted by the Assistant Chief's letter and the green card record

Reasoning

The Plaintiff claimed occupation since 1976, but the letter from the Assistant Chief of Nthagaiya sub-location introduced her as hailing from Kirinyaga County, corroborating the Defendant's evidence. She could not speak Kiembu despite claiming decades of residence. The green card showed first registration in 1994, transfer to her husband in September 1995, and to the Defendant on 19th September 1995. Time could only run from the Defendant's registration, and computation fell short of 12 years by the time of filing in 2006.

p. 2
02

When time begins to run for adverse possession against a registered proprietor

Holding

Time runs from the date the current registered owner's title arises, and possession must be hostile and adverse to that owner's title

Reasoning

The court held that the limitation period could not start with the father-in-law's registration of December 1994 because possession must be hostile and adverse to the title of the registered owner. The only relevant starting point was 19th September 1995 when the Defendant was registered as proprietor. Counting from that date, the originating summons filed in February 2006 fell short of the 12-year requirement.

p. 2
03

Whether the Defendant's eviction order interrupted the Plaintiff's possession

Holding

The Defendant asserted his right by obtaining an eviction order in Embu PMCC No. 368 of 1995, so the Plaintiff's possession was legally interrupted

Reasoning

Relying on Githu v Ndeete, the court noted that time ceases to run when the owner asserts his right through legal proceedings or effective entry. The Defendant had obtained an eviction order against the Plaintiff in 2003 in Embu PMCC No. 368 of 1995. That assertion of right stopped any limitation period from running in the Plaintiff's favour, defeating the continuity element of the adverse possession claim.

p. 3
04

Costs of the suit

Holding

Costs follow the event; the successful Defendant was entitled to costs

Reasoning

Applying section 27 of the Civil Procedure Act and Hussein Janmohammed & Sons v Twentsche Overseas Trading Co Ltd, the court held that costs are discretionary but follow the event, and there was no good reason to deny the successful party costs. The Plaintiff, having lost, was ordered to bear the costs of the suit.

p. 3

Legal principles established

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  • To acquire title by adverse possession a claimant must prove exclusive, open possession as of right without interruption for at least 12 years after dispossession of the owner or discontinuance of possession by the owner
  • Time under the Limitation of Actions Act ceases to run when the owner asserts his right, by legal proceedings or effective entry, or when his right is admitted by the adverse possessor
  • For adverse possession, the land must be registered in a person other than the applicant, who must be in open and exclusive possession adverse to the owner's title for over twelve years
  • Costs follow the event and a successful party should be awarded costs unless the court for good reason directs otherwise

Court orders

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  1. 1.The Plaintiff's originating summons dated and filed on 16th January 2006 be and is hereby dismissed in its entirety
  2. 2.The Plaintiff shall bear the costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsections 7, 37 & 38
  • Civil Procedure Actsection 27

Cases cited (7)

  • Wambugu Vs Njuguna
    [1983] KLR 172
  • Githu Vs Ndeete
    [1984] KLR 776
  • Kasuve Vs Mwaani Investments Ltd & 4 others
    [2004] 1 KLR 184
  • Kimani Ruchine Vs Swift Rutherfords & Co Ltd
    [1980] KLR 10
  • Wanja Vs Sakwa No. 2
    [1984] KLR 284
  • Wilson Kazungu Katana & 101 Others Vs Salim Abdalla Bakshwein & Another
    [2015] eKLR
  • Hussein Janmohammed & Sons Vs Twentsche Overseas Trading Co Ltd
    [1967] EA 287
Jurisdiction invoked
Sections 7, 37 & 38 of the Limitation of Actions Act (Cap 22); Environment and Land Court jurisdiction over land parcel Kagaari/Weru/4149

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, "Florence Wanjiru Mati v Fredrick Njagi Mburia [2019] KEELC 4990 (KLR)", Case Analysis (2019). E.L.C. Case No. 256 of 2015 (Formerly Kerugoya ELC No. 763 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4990/eng@2019-01-17

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