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ELCDismissedNot stated in judgment (Plaint filed 11th November 2013, High Court Kisii)· [2020] KEELC 679 (KLR)

Kegunchururu Makori Gesengi v Kennedy Tirimba & 3 others [2020] KEELC 679 (KLR)

High Court of Kenya
5 October 2020
4,539 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Plaintiff, registered proprietor of LR. NO. NYARIBARI CHACHE/KEUMBU/721 since 13th August 1974, sued for a declaration of ownership, eviction of the Defendants, general damages for trespass, costs and interest, alleging trespass. The 1st, 3rd and 4th Defendants filed a defence and counterclaim dated 11th December 2013, asserting that their occupation stemmed from sale agreements entered into by the Plaintiff with their deceased relatives, and claiming that their title had been extinguished by adverse possession; they sought to be registered as proprietors. Evidence showed the Plaintiff last used the land in 1975, made no police reports, and took no legal steps until filing suit in November 2013, while the Defendants had openly occupied the land for over 40 years, building houses, planting crops and trees. The court held that the Defendants' possession was nec vi, nec clam, nec precario and manifested animus possidendi, so time ran against the Plaintiff whose title was extinguished long before suit. Relying on Gulam Miriam Noordin v Julius Charo Karisa, the court held that adverse possession could properly be claimed by counterclaim rather than originating summons. The Plaintiff's suit was dismissed in its entirety and judgment entered on the counterclaim in terms of prayers (a) and (b): declarations that the Plaintiff's title was extinguished and that the 1st, 3rd and 4th Defendants had acquired title by adverse possession. The Plaintiff was ordered to transfer the suit property to the Defendants within 30 days, failing which the Deputy Registrar would execute the transfer documents, and each party was to bear their own costs.

Key legal issues

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01

Whether the Defendants trespassed on the suit land

Holding

The Defendants were not trespassers; their occupation was adverse to the Plaintiff's title

Reasoning

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.

p. 5
02

Whether the Defendants acquired title by adverse possession

Holding

Yes; the 1st, 3rd and 4th Defendants acquired the suit land by adverse possession and the Plaintiff's title was extinguished

Reasoning

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.

p. 6
03

Whether adverse possession could be claimed by counterclaim rather than originating summons

Holding

Yes; procedure by counterclaim is permissible

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Dismissal of the Plaintiff's claim against the Defendants
  2. 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. 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

Authorities

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Legislation

  • Trespass Act, Cap 294Section 3(1)
  • Limitation of Actions ActSection 7
  • Land Control ActSection 8
  • Civil Procedure RulesOrder 37

Cases cited (7)

  • Gulam Miriam Noordin vs Julius Charo Karisa
    (2015) eKLR
  • Wabala v Okumu
    [1997] LLR 609 (CAK)
  • Bayete Co. Ltd v Kosgey
    [1998] LLR 813
  • Teresa Wachika Gachira v Joseph Mwangi
    CA 325 of 2003
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Littledale v Liverpool College
    (1900) 1 Ch.19, 21
  • Adnam v Earl of Sandwich
    (1877) 2QB 485
Jurisdiction invoked
Original civil jurisdiction of the High Court over land claims and counterclaim (adverse possession and trespass)

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, "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.