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ELCPartially AllowedELC Case 441 of 2013, consolidated with ELC No. 706 of 2014 (OS)· [2020] KEELC 157 (KLR)

Eunice Wambui Nderitu & Kenneth Kimari Gitere v Joreth Limited [2020] KEELC 157 (KLR)

Environment and Land Court
17 December 2020
6,324 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This first-instance judgment of the Environment and Land Court at Nairobi (L. Komingoi, J) consolidated ELC 441 of 2013 (a plaint by Eunice Wambui Nderitu seeking a permanent injunction over LR No. 13330/246) with ELC 706 of 2014 (OS), an originating summons by Kenneth Kimari Gitere claiming title by adverse possession to the same property, treated as a counterclaim. The plaintiff had bought the property from Joreth Limited for Kshs.8,000,000 following a 2011 newspaper advertisement and was registered on 15th September 2011. Gitere claimed his father bought Plots 357 and 358 (now LR 13330/241 and 246) from Thome Farmers No. 5 Limited in 1989, that he took possession in 1989, built a cowshed, servants' quarters and pit latrine, and made payments towards titles through Njoroge Nyagah & Co. Advocates and Dan and Anderson Associates. The court framed three issues: validity of the sale to the plaintiff, adverse possession, and costs. It found the sale and transfer to the plaintiff legal and free of fraud, holding her title indefeasible under section 26(1) of the Land Registration Act. On adverse possession, it held Gitere's part payments towards purchase meant he was a purchaser, not a trespasser, so time could only run from 2013 when he stopped paying; Joreth Limited's suit HCCC 6206 of 1992 also interrupted any possession. The counterclaim was dismissed with costs and a permanent injunction issued restraining the defendants from interfering with the suit property, with costs to the plaintiff.

Key legal issues

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01

Validity of the sale and transfer of LR No. 13330/246 to the plaintiff

Holding

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.

Reasoning

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.

p. 6
02

Whether the 2nd defendant acquired title by adverse possession

Holding

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.

Reasoning

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.

p. 7
03

Computation of time where the occupier made part payments of purchase price

Holding

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.

Reasoning

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.

p. 6
04

Effect of the registered owner's suit (HCCC 6206 of 1992) and consent order on adverse possession

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Judgment entered for the plaintiff against the defendants jointly and severally.
  3. 3.Costs of the suit awarded to the plaintiff.
  4. 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

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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, "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.