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ELCAllowedE.L.C. Case No. 50 of 2014 (OS)· [2019] KEELC 5013 (KLR)

Elisha Njeru James v Felister Ngima Elijah (being sued as the administratrix of the estate of Elijah Njagi Henry) [2019] KEELC 5013 (KLR)

Environment and Land Court of Kenya
22 January 2019
YAY.M. Angima
1,400 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that someone who openly occupies and uses land for over 12 years can claim full ownership, even without a completed sale.

What this practically means

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Executive summary

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The Plaintiff filed an originating summons dated 21st October 2010 under section 38 of the Limitation of Actions Act seeking declaration that he had become entitled to Title Nos. Kagaari/Kanja/4793-4796 by adverse possession, a vesting order, and execution of transfer documents by the Deputy Registrar. His case was that in May 1963 he bought the suit properties while still part of parcel No. Kagaari/Kanja/1923 from Elijah Njagi Nyaga, took possession, and planted trees and about 4000 tea bushes, though the vendor never transferred the land. The Defendant, the administratrix of the deceased vendor's estate, never entered appearance despite service, and did not attend trial, so the suit proceeded ex parte. The Plaintiff testified and called three witnesses, including his wife and a worker engaged in 1963 to clear bushes and plant tea, corroborating continuous, open and uninterrupted possession. The court restated the elements of adverse possession from Wambugu v Njuguna, Githu v Ndeete, Kasuve v Mwaani Investments and Kimani Ruchine v Swift Rutherfords, and found the owner had discontinued possession on his own volition, that the Plaintiff's possession was adverse and not that of a licensee, and that the land had never been transferred to third parties despite distribution in a succession cause. The court declared the Plaintiff entitled to registration as proprietor of all four parcels by adverse possession, directed the Land Registrar, Embu to register him, ordered the Deputy Registrar to execute the transfer documents, lifted the existing prohibitory orders, and awarded the Plaintiff costs of the suit borne by the Defendant.

Key legal issues

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01

Whether the Plaintiff proved adverse possession of the suit properties

Holding

The Plaintiff proved adverse possession; he took possession in 1963 under an agreement for sale, planted about 4000 tea bushes, and the owner discontinued possession on his own volition, so title had vested.

Reasoning

The Plaintiff purchased the suit properties in 1963 while they formed part of parcel No. 1923, took possession, cleared bushes and planted tea. His possession was corroborated by three witnesses and was unchallenged because the Defendant never entered appearance nor attended trial despite service. The court found the owner had discontinued possession on his own volition, that the Plaintiff's possession was adverse, and rejected the possibility that he was a mere licensee, given prior disputes over the land submitted to various fora without success.

p. 2
02

Whether costs should be awarded to the Plaintiff

Holding

Costs were awarded to the successful Plaintiff as costs follow the event.

Reasoning

The court applied the general rule that costs follow the event, citing Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, and found no good reason to deny the successful litigant his costs.

p. 2

Legal principles established

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  • A claimant seeking title by adverse possession must prove exclusive, open possession as of right without interruption for 12 years, either after dispossession of the owner or discontinuation of possession by the owner on his own volition; title by adverse possession can be acquired for part of the land.
  • Costs follow the event; a successful litigant will normally be awarded costs unless the court for good reason directs otherwise.

Court orders

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  1. 1.Declared that the Plaintiff, Elisha Njeru James, has become entitled to be registered as proprietor of Title Nos Kagaari/Kanja/4793, 4794, 4795 and 4796 on account of adverse possession
  2. 2.The Land Registrar, Embu shall forthwith cause the Plaintiff to be registered as proprietor of the aforesaid parcels of land
  3. 3.The Deputy Registrar of the court shall execute all the necessary forms and documents on behalf of the Defendant to facilitate the transfer of the said parcels of land to the Plaintiff
  4. 4.The prohibitory orders currently registered against the said parcels are lifted to facilitate the registration of the Plaintiff as proprietor
  5. 5.The Plaintiff is awarded costs of the suit to be borne by the Defendant

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 38

Cases cited (6)

  • Wambugu Vs Njuguna
    [1983] KLR 172
  • Githu Vs Ndeete
    [1984] KLR 776
  • Kasuve Vs Mwaani Investments Ltd & 4 Others
    [2004] 1KLR 184
  • Kimani Ruchine Vs Swift Rutherfords & Co Ltd
    [1980] KLR 10
  • Wanja Vs Saikwa No. 2
    [1984] KLR 284
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap 22) - originating summons for adverse possession

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, "Elisha Njeru James v Felister Ngima Elijah (being sued as the administratrix of the estate of Elijah Njagi Henry) [2019] KEELC 5013 (KLR)", Case Analysis (2019). E.L.C. Case No. 50 of 2014 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5013/eng@2019-01-22

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