Merironi Nyakinyua Multi Purpose Co-operative Society Ltd v Gituamba Holding Limited [2020] KEELC 545 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Ingredients of adverse possession
A claimant must prove peaceful, continuous, open and uninterrupted possession for over 12 years, using the land as owner and inconsistently with the interest of the registered proprietor.
The court restated the ingredients of adverse possession from Mtana Lewa, Mbira v Gachuhi, Wambungu v Njuguna and Kimani Ruchire: possession must be nec vi, nec clam, nec precario, continuous and inconsistent with the true owner's enjoyment of the land, sustained for the statutory period of 12 years.
Whether the applicants acquired title by adverse possession against the respondent
The applicants, in possession since 1993 on the strength of the 1993 sale agreement with Kanyeki Farmers Co-operative Society, had acquired title by prescription before the respondent was registered in 2009; the respondent's registration was subject to their overriding rights.
Unchallenged affidavit evidence showed the applicants entered possession in 1993, built homesteads and schools, and were in possession when the respondent was registered on 27th November 2009. Their possession exceeded the statutory 12-year period, extinguishing the registered owner's title and rendering the respondent's registration subject to their overriding interest.
Effect of uncontroverted evidence in an undefended suit
Where the respondent neither entered appearance nor filed a response, the applicant's unchallenged affidavit evidence must be accepted as correct.
The matter proceeded by way of affidavit evidence, documents and written submissions after the respondent failed to respond to substituted service by advertisement. The court held that unrebuted and unchallenged evidence is to be accepted, and it was on that basis that the claim was proved on a balance of probabilities.
Legal principles established
#- Rights acquired through adverse possession are overriding interests over registered land which need not be noted on the register.
- A registered proprietor takes subject to rights acquired or in the process of being acquired by adverse possession or prescription under section 28(h) of the Land Registration Act, 2012.
Court orders
#- 1.The title to the whole parcel of land known as LR No.3777/325 situated in Gilgil is deemed to have been extinguished through adverse possession by the applicant
- 2.The Applicant is to be registered as the proprietor of the suit parcel of land on behalf of its members
- 3.Judgment entered in favour of the applicants in terms of prayers 1 and 2 of the originating summons
- 4.Costs of the suit awarded to the applicants
- Jurisdiction invoked
- Original jurisdiction under the Land Registration Act, 2012 and the Limitation of Actions Act (adverse possession claim by Originating Summons)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njoroge v Maina (Civil Appeal E042 of 2023) [2024] KEELC 5849 (KLR)[2024] KEELC 5849 (KLR)20 Aug 2024
- Jeremiah Otemo Okonyo v Registered Trustees African Divine Church & James Mulongo Sileka [2022] KEELC 717 (KLR)[2022] KEELC 717 (KLR)24 Mar 2022applied
Cite this brief
#Cite this brief
Caselaw, "Merironi Nyakinyua Multi Purpose Co-operative Society Ltd v Gituamba Holding Limited [2020] KEELC 545 (KLR)", Case Analysis (2020). Originating Summons dated 8th February 2016 (filed 9th February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/545/eng@2020-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.