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ELCDismissedELC Case No. 63 of 2018· [2020] KEELC 383 (KLR)

Bereneder Mima v another & Fred Reuen Mima [2020] KEELC 383 (KLR)

Environment and Land Court
8 December 2020
NMN.A. Matheka
1,761 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court dismissed a widow's land ownership claim because she could not prove 12 years of continuous possession.

What this practically means

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Executive summary

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The plaintiff, a widow, sought a declaration that she was the legal owner of Land Parcel No. North Kabras/Kivaywa/1620 by purchase from the 1st defendant, her registration as sole proprietor, a stay of proceedings instituted by the 2nd defendant (her stepson) against her tenants, and injunctions restraining the defendants from dealing with the land or interfering with her possession. She claimed she bought the land on 1st March 2007, had been in possession for over 11 years, built rental houses and paid utility bills, and that after her husband's death in 2014 the 2nd defendant forcefully took over the property and harassed her tenants. The 1st defendant acknowledged selling three demarcated portions of plot 1509, including one to the plaintiff's deceased husband, but stated the purchase price remained partly unpaid until the 2nd respondent settled the balance of Kshs.14,140 in December 2014, after which he handed over the title. The court applied sections 24(a) and 26(1) of the Land Registration Act on the indefeasibility of registered title, and the adverse possession principles in Wambugu v Njuguna, Gerald Muriithi v Wamugunda Muriuki, Francis Gicharu Kariri v Peter Njoroge Mairu and Kimani Ruchire v Swift Rutherfords, including that in a purchase-based claim time runs from payment of the last instalment. It found the plaintiff had not proved exclusive, continuous and uninterrupted possession for over 12 years on a balance of probabilities. The suit was dismissed with no orders as to costs.

Key legal issues

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01

Whether the plaintiff acquired the suit land by adverse possession

Holding

The claim failed; the plaintiff did not prove exclusive, continuous and uninterrupted possession for the statutory 12-year period

Reasoning

The court set out the principles from Wambugu v Njuguna as adopted in Gerald Muriithi v Wamugunda Muriuki: title by the statute of limitations requires dispossession or discontinuance of the owner's possession, and where the claim rests on a purchase agreement, time runs from payment of the last instalment. Applying Kimani Ruchire v Swift Rutherfords, the plaintiff had to prove possession nec vi, nec clam, nec precario, with the owner's knowledge and continuity. The court found the 12-year threshold unproven on a balance of probabilities.

p. 3
02

The indefeasibility of the 1st defendant's title under the Land Registration Act

Holding

The registered proprietor's title is absolute and indefeasible except on grounds of fraud, misrepresentation or illegal, unprocedural or corrupt acquisition under sections 24(a) and 26(1) of the Land Registration Act

Reasoning

The court invoked section 24(a), vesting absolute ownership in the registered proprietor, and section 26(1), making the certificate of title prima facie evidence of indefeasible ownership challengeable only on fraud/misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme. It endorsed Elijah Makeri Nyangw'ra on when an innocent third party's title may be impugned. It is not disputed the 1st defendant is the registered owner of the suit parcel.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation or illegal, unprocedural or corrupt acquisition
  • Where a claimant pleads an agreement for sale and alternatively adverse possession, possession becomes adverse after payment of the last instalment of the purchase price, and 12 years' occupation thereafter is required
  • Adverse possession must be established on a balance of probabilities as exclusive, continuous and uninterrupted possession for over 12 years

Court orders

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  1. 1.The plaintiff's suit is dismissed with no orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Actprovisions on adverse possession

Cases cited (5)

  • Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
  • Francis Gicharu Kariri - v- Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire -v- Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (original jurisdiction over land disputes)

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, "Bereneder Mima v another & Fred Reuen Mima [2020] KEELC 383 (KLR)", Case Analysis (2020). ELC Case No. 63 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/383/eng@2020-12-08

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