Kegunchururu Makori Gesengi v Kennedy Tirimba & 3 others [2020] KEELC 679 (KLR)
The bottom line
#A Kenyan landowner lost his land to relatives who had occupied it openly for over 40 years, proving that ignoring your property can cost you its title.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants trespassed on the suit land
The Defendants were not trespassers; their occupation was adverse to the Plaintiff's title
Although the Plaintiff was the registered proprietor, the Defendants had occupied and lived on the land since the 1980s (in the case of the 4th Defendant since 1975) with the Plaintiff's knowledge. The Plaintiff last used the land in 1975, made no police reports, and took no legal steps until 2013. Possession was open, continuous and inconsistent with the Plaintiff's title, so the trespass claim failed.
Whether the Defendants acquired title by adverse possession
Yes; the 1st, 3rd and 4th Defendants acquired the suit land by adverse possession and the Plaintiff's title was extinguished
The Defendants occupied the land openly for over 12 years without the Plaintiff's permission, built structures, planted crops and trees, and manifested animus possidendi. The Plaintiff admitted last using the land in 1975 and took no steps to interrupt possession. Time therefore ran against him and his title was extinguished before he filed suit in 2013.
Whether adverse possession could be claimed by counterclaim rather than originating summons
Yes; procedure by counterclaim is permissible
Relying on Gulam Miriam Noordin v Julius Charo Karisa, the court held that case law and practice have evolved to permit adverse possession claims pleaded in a defence and counterclaim, since the requirement of originating summons under Order 37 is procedural and not fatal.
Legal principles established
#- Adverse possession runs where a person in possession asserts rights over land and the titled owner omits to take action for 12 years; possession must be nec vi, nec clam, nec precario
- A claim for adverse possession may properly be brought by way of statement of defence and counterclaim rather than originating summons
- Time ceases to run and title is extinguished where the registered owner takes no step to interrupt possession for over 12 years
Court orders
#- 1.Dismissal of the Plaintiff's claim against the Defendants
- 2.Judgment entered for the Defendants on the counterclaim dated 11th December 2013 in terms of prayers (a) and (b) - declarations that the Plaintiff's title is extinguished and that the 1st, 3rd and 4th Defendants have acquired title by adverse possession
- 3.The Plaintiff to transfer the suit property to the Defendants at the latter's expense within 30 days, failing which the Deputy Registrar, High Court, Kisii to execute the necessary transfer documents on behalf of the Plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over land claims and counterclaim (adverse possession and trespass)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kegunchururu Makori Gesengi v Kennedy Tirimba & 3 others [2020] KEELC 679 (KLR)", Case Analysis (2020). Not stated in judgment (Plaint filed 11th November 2013, High Court Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/679/eng@2020-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.