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ELCDismissedMeru ELC Suit filed 25.4.2016 (number not stated in judgment)· [2020] KEELC 82 (KLR)

Samson Mbaabu Nkarichia v Sacinta Kinya Gituma [2020] KEELC 82 (KLR)

Environment and Land Court
28 October 2020
2,064 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Meru Land Court dismissed a man's claim to own land through adverse possession because his occupation was never open, exclusive, or continuous.

What this practically means

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Executive summary

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The plaintiff sued the registered owner of land parcel No. Abothuguchi/Gaitu/2897 (0.44 ha), claiming entitlement to the land by adverse possession. He alleged that on 3.11.1992 he entered a sale agreement with the defendant's son for one acre to be excised from the original parcel Abothuguchi/Gaitu/433, took possession, built structures, and remained in occupation for over 12 years, so that the defendant's title had been extinguished and the 2016 eviction was unlawful. The defendant denied the sale and continuous occupation, asserting that the plaintiff only entered the land in 2000 while she was in hospital, cut her trees, built briefly and then left after a demand letter, with the land having been leased to her witnesses from 1988 to date. The court identified one issue: whether the plaintiff met the criteria of an adverse possessor. Applying Mtana Lewa, Kweyu v Omutut and the Wambugu v Njuguna principles, the court found four disqualifying factors: the sale agreements (1992, 2008, 2015) showed negotiations were still ongoing, so there was no entry under a colour of right while the agreement stood; exclusive possession of an identifiable parcel was missing, since parcel 1368 already existed at the time of the 1992 agreement; the plaintiff's entry in 2000 was by stealth during the defendant's hospitalisation; and the plaintiff admitted on re-examination that he had been evicted and was not in occupation when he filed suit in April 2016. The suit was dismissed with costs to the defendant. Judgment was delivered electronically on 28 October 2020 pursuant to COVID-19 practice directions, with parties deemed to have waived order 21 rule 1.

Key legal issues

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01

Whether the plaintiff satisfied the prerequisites of adverse possession

Holding

The plaintiff failed: the sale agreement remained in force up to 2015, possession was not exclusive or over an identifiable portion, entry was by stealth, and the plaintiff had been evicted before filing suit.

Reasoning

The court examined four elements: whether the agreement had collapsed (it had not, remaining in force up to 2015 with vacant possession promised only from March 2016); exclusive possession of an identifiable parcel (parcel 1368 already existed when the 1992 agreement was signed); open and notorious entry (the defendant's account of entry in 2000 while she was in hospital was accepted as entry by stealth); and continued occupation (the plaintiff admitted being evicted before filing suit in April 2016). Each element failed.

p. 2
02

Whether entry under a subsisting sale agreement can found adverse possession

Holding

No - time does not run against the owner while the agreement remains in force, since entry is under a colour of right.

Reasoning

The agreements of 1992, 2008 and 2015 showed the parties were still in negotiation up to 2015. Clause 5 of the 2015 agreement granting vacant possession by 31 March 2016 demonstrated the plaintiff was not in possession before that date. Applying M'mbaoni M'thaara v James Mbaka, the court held that entry under a colour of right cannot exist where the agreement has not collapsed.

p. 2
03

Whether the plaintiff's occupation was open, notorious and continuous

Holding

No - the evidence showed a single stealthy entry in 2000, followed by a demand letter and abandonment of the land.

Reasoning

The defendant and DW2 gave a consistent account that the plaintiff entered the land in September 2000 while the defendant was hospitalised, cut trees and attempted to build, then left after a demand letter. The plaintiff himself admitted in re-examination that the crops of 2015-2016 were not his, that he had stopped using the house in 2016 and that he had been evicted before filing suit.

p. 3

Legal principles established

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  • Possession that is to ripen into adverse possession must not be by force, stealth or licence, and must be adequate in continuity, publicity and extent
  • Adverse possession continued for the requisite period of 12 years confers an indefeasible title upon the possessor
  • Where a claimant bought land under an agreement and in the alternative claims adverse possession, time runs from payment of the last installment of the purchase price
  • There can be no entry under a colour of right while the alleged sale agreement between the parties is still in force

Court orders

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  1. 1.This suit is dismissed with costs to the defendant

Authorities

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Legislation

  • Limitation of Actions Actsection 23(1)(a)(i)
  • Civil Procedure Rulesorder 21 rule 1

Cases cited (7)

  • Gatimu Kinguru vs Muia Gathangi
    (1976) eKLR
  • Wilson Njoroge Kamau vs Ng'ang'a Mucheru Kamau
    (2020) eKLR
  • Mtana Lewa vs. Kahindi Ngala Mwagandi
    (2015) eKLR
  • Kweyu vs Omutut
    (1990) KLR
  • Gerard Murithi vs Wamugunda Muriuki and another
    (2010) eKLR
  • Wambugu vs Njuguna
    (1983) KLR page 173
  • M'mbaoni M'thaara vs. James Mbaka
    (2017) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (Article 162(2)(b) of the Constitution is not expressly invoked in the judgment; suit filed before the ELC at Meru)

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, "Samson Mbaabu Nkarichia v Sacinta Kinya Gituma [2020] KEELC 82 (KLR)", Case Analysis (2020). Meru ELC Suit filed 25.4.2016 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/82/eng@2020-10-28

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