Sammy Mutua Muswii v Njoki Elizabeth Wambugu [2020] KEELC 544 (KLR)
The bottom line
#The High Court in Machakos reversed its own earlier ruling after a filing error, and declared that 32 years of occupation had given the buyer full ownership of the land.
What this practically means
#Executive summary
#Key legal issues
#Review of judgment under Order 45
The striking out of the suit rested on an incomplete copy of the title, a bona fide error amounting to sufficient reason for review
Order 45 permits review upon discovery of new matter, mistake or error apparent on the face of the record, or any other sufficient reason. The suit was struck out solely because the filed copy of the title lacked its last page due to a photocopying and filing error. The Defendant did not oppose the application, and the complete title was now before the court, satisfying the sufficient-reason ground.
Adverse possession
The Plaintiff, having purchased the property in 1988 and remained in occupation uncontroverted, acquired registrable title by adverse possession
Sections 7 and 38(1) of the Limitation of Actions Act bar recovery of land after twelve years and allow a person in adverse possession to apply to be registered as proprietor. Following Kimani Ruchine vs Swift Rutherford, possession must be as of right and continuous. The Defendant did not controvert the Plaintiff's evidence of purchase on 9th July 1988 and continuous occupation since then.
Legal principles established
#- A bona fide error such as filing an incomplete document is a sufficient reason for review under Order 45
- Adverse possession ripens after twelve years and entitles the possessor to be registered as proprietor
Court orders
#- 1.The Plaintiff's Originating Summons dated 23rd February, 2015 is allowed
- 2.The Judgment of 25th September, 2019 is reviewed
- 3.The Plaintiff has acquired registrable interest in land known as L.R. No. 337/488, IR 34879 by adverse possession
- 4.The title for L.R. No. 337/488, IR 34879 to be registered in favour of the Plaintiff
- 5.Each party to bear his/her own costs
- Jurisdiction invoked
- Order 45 of the Civil Procedure Rules (review jurisdiction); sections 7 and 38(1) of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sammy Mutua Muswii v Njoki Elizabeth Wambugu [2020] KEELC 544 (KLR)", Case Analysis (2020). Notice of Motion dated 6th June, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/544/eng@2020-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.