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ELCPartially AllowedELC No. 263 of 2016 (OS)· [2020] KEELC 266 (KLR)

Stanley Kamau Ngahu & 2 others v Didar Singh S/O Jawala Singh [2020] KEELC 266 (KLR)

Environment and Land Court
10 December 2020
LKL. Komingoi
942 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court gave three brothers ownership of an Eastleigh property they openly occupied for over forty years without the owner's consent.

What this practically means

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Executive summary

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This was an originating summons brought under Order 37 rule 7 of the Civil Procedure Rules and Sections 37 and 38 of the Limitation of Actions Act by three brothers, as legal representatives and administrators of the estate of the late Ngahu Kamau, claiming LR 36/II/163 Nairobi by adverse possession. They asserted that they had occupied the property in Eastleigh openly, continuously and as of right for over forty years since 1967, without paying rent or being asked to vacate, and that the defendant's title had been extinguished. The defendant, served by substituted service through advertisements in the Daily Nation and The Standard following orders granted on 23 July 2018, neither entered appearance nor filed a response, and the matter proceeded to formal proof. The 1st plaintiff testified, producing the grant of letters of administration intestate and an extract of title in the defendant's name. The court, guided by the Court of Appeal decision in Peter Mberi Michuki v Samuel Mugo Michuki, set out the principles of adverse possession: clear possession, occupation without the owner's consent, uninterrupted continuous occupation for more than twelve years, and exhibition of an extract of title. Finding all conditions satisfied and the case uncontroverted, the court declared the plaintiffs entitled to the property by adverse possession, extinguished the defendant's title, and directed the Chief Land Registrar to register the plaintiffs as joint owners and issue a certificate of title. Costs were not awarded; there were no orders as to costs. Judgment was delivered on 10 December 2020 by L. Komingoi, J.

Key legal issues

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01

Whether the plaintiffs proved adverse possession of LR 36/II/163 Nairobi

Holding

The court found that the plaintiffs satisfied all the conditions for adverse possession, having occupied the property openly, continuously and without the defendant's consent for over forty years, entitling them to declaration of ownership and extinguishment of the defendant's title.

Reasoning

The plaintiffs, administrators of the estate of the late Ngahu Kamau, testified in formal proof that they reside on the suit property in Eastleigh, Nairobi, and have conducted business there for more than forty years without paying rent and without being asked to vacate. The defendant, served by substituted service through newspaper advertisements, neither entered appearance nor filed a response, leaving the plaintiffs' case uncontroverted. An extract of title in the defendant's name was exhibited, satisfying the requirement to exhibit the title. Applying the principles from Peter Mberi Michuki v Samuel Mugo Michuki, the court found the elements of adverse possession established and granted the declaratory and registration reliefs, but declined costs.

p. 2

Legal principles established

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  • A plaintiff claiming adverse possession must show clear possession, occupation without the owner's consent, uninterrupted continuous occupation for more than twelve years, and must exhibit an extract copy of the title under litigation.
  • Possession relied on for adverse possession must be as of right, nec vi, nec clam, nec precario, and continuous without break.

Court orders

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  1. 1.Declared that the plaintiffs are entitled to be declared as proprietors of Parcel No 36/11/163 Nairobi which they have acquired by adverse possession and that the defendant's title is extinguished
  2. 2.Ordered that the Chief Land Registrar do register the plaintiffs as joint owners of Parcel No. LR No. 36/11/163 and a certificate of Title be issued
  3. 3.Ordered that there be no orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActSections 37 and 38
  • Civil Procedure RulesOrder 37 rule 7

Cases cited (3)

  • Peter Mberi Michuki vs Samuel Mugo Michuki
    CA No 22 of 2013
  • Francis Gicharu Kariuki vs Peter Maina
    Civil Appeal No. 293 of 2002, Nairobi
  • Kimani Ruchire vs Swift Rutherfords Co. Ltd
    [1980] KLR
Jurisdiction invoked
Order 37 rule 7 of the Civil Procedure Rules and Sections 37 and 38 of the Limitation of Actions Act (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, "Stanley Kamau Ngahu & 2 others v Didar Singh S/O Jawala Singh [2020] KEELC 266 (KLR)", Case Analysis (2020). ELC No. 263 of 2016 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/266/eng@2020-12-10

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