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ELCDismissedChuka ELC Originating Summons (under Order 37 Rule 7 of the Civil Procedure Rules) dated 27th July 2018· [2020] KEELC 629 (KLR)

Morris Kiruja Mpungu & another v Margret Ngiri Muchiri & another [2020] KEELC 629 (KLR)

Environment and Land Court of Kenya
17 November 2020
PNP. M. NJOROGE
6,894 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Chuka dismissed an adverse possession claim because the claimants entered the land by purchase or permission, not hostile occupation.

What this practically means

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Executive summary

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The plaintiffs, Morris Kiruja Mpungu and Genesio Kiraithe Mpungu, filed an Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules claiming to have been in open, continuous and exclusive possession of 2.80 acres comprised in LR Muthambi/Erega/204 for periods exceeding twelve years (from 1973 for the 2nd plaintiff and 1994 for the 1st plaintiff), and sought declarations of ownership by adverse possession, orders for transfer, and costs. The defendants, Margaret Ngiri Muchiri and Robert Nyaga Rutere, became registered as proprietors on 15/08/2013 following Chuka PMCC Succession Cause No. 81 of 2012 in the estate of Njoka Riria, the original registered owner. They denied the claim, asserting the plaintiffs entered forcibly around 2010-2011, were trespassers, and were forum-shopping given a pending succession cause challenging the grant. At trial, the plaintiffs' witnesses gave contradictory evidence, each effectively confirming the plaintiffs entered the land through purchase from Francis Nkari (a son of the original owner) or through permission of the owner's relatives, rather than adverse assertion of title. DW1's evidence was unshaken. The court framed two issues: whether the plaintiffs proved adverse possession on a balance of probability, and costs. Holding that adverse possession must be proven by cogent evidence and that entry founded on purchase or permission is not adverse, the court found the defendants' evidence more credible and dismissed the suit, awarding costs to the defendants.

Key legal issues

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01

Whether the plaintiffs acquired LR Muthambi/Erega/204 by adverse possession

Holding

The plaintiffs failed to prove adverse possession; their evidence was inconsistent and showed entry by permission/purchase, and the defendants' evidence was more credible

Reasoning

The court found the plaintiffs' witnesses contradictory, with each admitting the plaintiffs entered through purchase or permission rather than hostile assertion of title. The 1st plaintiff bought from a non-owner (Francis Nkari) and the 2nd plaintiff's evidence was garbled. The defendants' evidence, particularly DW1's, was unshaken in cross-examination and more plausible on a balance of probability.

p. 10
02

Whether entry with permission or under a purchase disposes of an adverse possession claim

Holding

Yes - possession derived from the owner or his relatives by permission or agreement is not adverse

Reasoning

Relying on authorities cited by the parties, the court reasoned that occupation derived from the proprietor by permission, agreement or grant is not adverse. All the plaintiffs' witnesses agreed the plaintiffs entered through modes of purchase from relatives of the registered owner, defeating the claim.

p. 9

Legal principles established

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  • Occupation founded on purchase or permission of the registered owner or his relatives is not adverse possession

Court orders

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  1. 1.This suit is hereby dismissed.
  2. 2.Costs will follow the event and are awarded to the defendants/respondents.

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Limitation of Actions Act
  • Land Control ActCap 302
  • Civil Procedure ActSection 6

Cases cited (15)

  • Githu v Ndete
    Nairobi Civil Appeal No. 24 of 1979
  • Public Trustee v Wanduru
    Nairobi Civil Appeal No. 73 of 1982
  • ELC Case No. 45 of 2017 (Justice Kemei)
    ELC Case No. 45 of 2017
  • Ngati Farmers Cooperative Society Ltd vs Cllr John Ledidi & 15 Others
    Civil Appeal No. 64 of 2004
  • Littledale v Liverpool College
    [1990] 1 Ch 19, 21
  • James Mwangi & Others v Mukinye Enterprises Ltd
    High Court Civil Case No. 3912 of 1986
  • Titus Kigoro Munyi v Peter Mburu Kimani
    [2015] eKLR
  • Joseph Muthuri Ikunyua vs James Muthuri Ikunyua
    Meru ELC No. 135 of 2009
  • Haro Yonda vs Sadaka Dzengo Mbauro & Another
    Malindi ELC No. 106 of 2007
  • Benjamin Kamau Murima & Others v Gladys Njeri
    Civil Appeal No. 213 of 1996
  • Christopher Kioi & another v Winnie Mukolwe & 4 others
    [2018] eKLR
  • Samuel Miki v Jane Njeri Richu
    CA No. 122 of 2001
  • M'Mbaoni M'Thaara Vs James Mbaka
    Chuka ELC No. 110 of 2017
  • Sophie Wanjiku John Vs Jane Mwihaki Kimani
    Nrb ELC No. 490 of 2010
  • Ravji Karsan Sanghani vs Peter Gakunu
    NRB HCCC No. 365 of 2014
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Order 37 Rule 7 of the Civil Procedure Rules (adverse possession claim)

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, "Morris Kiruja Mpungu & another v Margret Ngiri Muchiri & another [2020] KEELC 629 (KLR)", Case Analysis (2020). Chuka ELC Originating Summons (under Order 37 Rule 7 of the Civil Procedure Rules) dated 27th July 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/629/eng@2020-11-17

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