Eunice Wambui Nderitu & Kenneth Kimari Gitere v Joreth Limited [2020] KEELC 157 (KLR)
The bottom line
#The Environment and Land Court upheld a buyer's title and dismissed an adverse possession claim, confirming that partial payment of purchase price stops the 12-year clock from running.
What this practically means
#Executive summary
#Key legal issues
#Validity of the sale and transfer of LR No. 13330/246 to the plaintiff
The sale and transfer by Joreth Limited to the plaintiff was legal and valid; there was no fraud or misrepresentation and no ground to impeach the plaintiff's title under section 26(1) of the Land Registration Act.
The plaintiff bought the suit property from Joreth Limited after a newspaper advertisement, conducted due diligence and was registered on 15th September 2011. Joreth Limited's operations manager corroborated that the property was vacant at the time of sale. The 2nd defendant had only paid for LR No. 13330/241, leaving a balance of Kshs.67,000 on the suit property unpaid, so it was available for sale. No evidence of fraud in the transfer was adduced.
Whether the 2nd defendant acquired title by adverse possession
The 2nd defendant's claim for adverse possession failed; he did not prove open, notorious, continuous and uninterrupted possession for more than 12 years adverse to the registered owner.
The court set out the principles: clear possession, occupation without the owner's consent, uninterrupted occupation for over 12 years, and production of an extract of title. The 2nd defendant's payments towards purchase, arising from the consent order in HCCC 6206 of 1992, meant he was a purchaser rather than a trespasser; time could only start running from 2013 when he stopped payments, far short of 12 years by 2014. Joreth Limited's suit HCCC 6206 of 1992 also interrupted any alleged possession.
Computation of time where the occupier made part payments of purchase price
A claimant's possession is deemed adverse only after payment of the last instalment of purchase price; a claim for adverse possession arises 12 years after the last payment.
Relying on Wambugu v Njuguna, the court held that the 2nd defendant's payments to Njoroge Nyagah & Co. Advocates in 2006 and to Dan and Anderson Associates ending in 2012/2013 showed he was asserting a purchaser's interest, not adverse possession. Counting from the last payment, the earliest a claim could have been lodged would have been 2018 (or 2024 from the 2012 payment), not 2014 when the originating summons was filed.
Effect of the registered owner's suit (HCCC 6206 of 1992) and consent order on adverse possession
The filing of HCCC 6206 of 1992 by the registered owner to assert its rights against trespassers interrupted any alleged adverse possession and showed the possession was not uninterrupted.
The court accepted the 1st defendant's submission that the suit and newspaper notices legally interrupted adverse possession and asserted the registered owner's title. The consent order required Thome Farmers No. 5 Limited members to pay Kshs.200,000 within six months to benefit from titles; the 2nd defendant's payments arose from that consent order, further negating adverse possession.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme (section 26(1), Land Registration Act).
- Where a person in occupation makes payments towards purchasing the land, his possession is not adverse; time for adverse possession runs only from the date of the last payment of purchase price.
- The burden of proving title by adverse possession rests on the person asserting it, who must prove continuity, probability and extent of possession on a balance of probability.
Court orders
#- 1.An order of permanent injunction restraining the defendants, their agents and/or servants from trespassing, encroaching, developing, alienating, disposing, selling and/or in any other manner whatsoever dealing with LR NO. 13330/246.
- 2.Judgment entered for the plaintiff against the defendants jointly and severally.
- 3.Costs of the suit awarded to the plaintiff.
- 4.The 2nd defendant's counterclaim (ELC 706/14 OS) dismissed with costs.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution / Environment and Land Court Act - original jurisdiction over land disputes (as constituted at Nairobi, ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eunice Wambui Nderitu & Kenneth Kimari Gitere v Joreth Limited [2020] KEELC 157 (KLR)", Case Analysis (2020). ELC Case 441 of 2013, consolidated with ELC No. 706 of 2014 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/157/eng@2020-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.