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ELCDismissedELC Case No. 81 of 1999 (OS)· [2020] KEELC 211 (KLR)

Johnson Maina Mukuna & 4 others v Mathu Wairia & 6 others [2020] KEELC 211 (KLR)

Environment and Land Court
17 December 2020
LKL. Komingoi
5,601 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a family land claim, ruling that living on land with the owner's permission does not give you ownership rights.

What this practically means

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Executive summary

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By an originating summons dated 15th January 1999 and amended on 16th June 2008, the plaintiffs, sons and relatives of the late Dedan Mukuna Wairia, claimed that they had acquired by adverse possession the portions they occupied in parcels Loc 16/Ndakaini/707-713, formerly Loc 16/Ndakaini/402, or alternatively that the defendants held the land in trust for them. They sought declarations of trust and of adverse possession and orders for transfer. The 1st defendant had acquired the land after succeeding in HCCC 280 of 1978 against the plaintiffs' father, and later subdivided and transferred the land to the 2nd to 7th defendants in Thika CMCC 1192 of 1997 after a caution was removed. The defendants contended the plaintiffs' occupation was permissive, that the 1st defendant asserted his rights through HCCC 2435 of 1994, and that no trust was proved. The court framed three issues: trust, adverse possession, and costs. On trust, it held the plaintiffs failed to demonstrate how any customary trust was created, noting some plaintiffs were adults at registration. On adverse possession, it held the plaintiffs' occupation was permissive since the 1st defendant allowed them to remain, that the eviction suit in HCCC 2435 of 1994 interrupted continuity, and that the requirements of nec vi, nec clam, nec precario and animus possidendi were not proved. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the defendants held the suit parcels in trust for the plaintiffs

Holding

The claim in trust failed; plaintiffs did not demonstrate how any trust was created

Reasoning

The 1st defendant was registered as owner of Loc 16/Ndakaini/402 after successfully litigating in HCCC 280 of 1978. A trust is a question of fact to be proved by evidence of the history of the property and customary law. Some plaintiffs were adults at registration and never explained what stopped them from being registered. No reason was shown why the 1st defendant would hold the land as trustee.

p. 5
02

Whether the plaintiffs acquired their portions by adverse possession

Holding

The claim failed; occupation was permissive and not continuous for twelve years

Reasoning

Adverse possession requires occupation nec vi, nec clam, nec precario plus animus possidendi. The plaintiffs' own case was that the 1st defendant allowed them to remain, so possession was permissive. Further, the 1st defendant filed HCCC 2435 of 1994 seeking eviction, interrupting continuity, and the plaintiffs obstructed survey attempts, showing their occupation was not peaceful.

p. 6

Legal principles established

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  • A customary law trust must be proved by evidence of the history of the suit property and the relevant customary law
  • Adverse possession does not apply where possession is by consent or permission

Court orders

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

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 38(1)
  • Land Registration Actsection 28(h)

Cases cited (16)

  • Wambugu v Njuguna
    [1983] KLR 173
  • Mbira v Gachuhi
    (2002) EALB 137
  • Mtana Lewa v Kahindi Ngala Mwangandi
    [2005] eKLR
  • Njenga Chogera v Maria Wanjira of Muthuita & 2 others
    [1982-88] 1 KLR 42
  • Peter Gitonga v Francis Maingi M'Ikiara
    HCCC 146/2000
  • Kanyi v Muthora
    [1984] KLR 712
  • Njenga Kimani & 2 others v Kimani Nganga K. Wainaina
    [2017] eKLR
  • JKN-A & 2 others v TMN (suing as the next friend of SNK alias NK – person of unsound mind) & 2 others
    [2019] eKLR
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Samuel Kihamba v Mary Mbaisi
    [2015] eKLR
  • Samuel Miki v Jane Njeri Richu
    CA no. 122 of 2001
  • Mwinyi Hamis Ali v Attorney General and Philemon Mwaisaka Wanaka
    civil appeal no. 125 of 1997
  • Mwatando Mwagambo Wasanga v Ngaruko Mwangombe & 10 others
    [2014] eKLR
  • Ethics and Anti-Corruption Commission v Nderitu Wachira & 2 others
    [2016] eKLR
  • Gatimu Kingara v Muya Gathangi
    [1976-80] KLR 317
  • Elwa Nyongesa Lusenaka & Another v Nathan Wekesa Omacha
    Kisumu Civil Appeal No 134 of 1993 (UR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under an originating summons for adverse possession and trust

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, "Johnson Maina Mukuna & 4 others v Mathu Wairia & 6 others [2020] KEELC 211 (KLR)", Case Analysis (2020). ELC Case No. 81 of 1999 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/211/eng@2020-12-17

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