Peter Njoroge Kibiri (Suing on his own behalf and on behalf of 17 others) v Mugwathi Farms Limited [2020] KEELC 853 (KLR)
The bottom line
#A Nairobi court granted land ownership to 17 long-term occupants through adverse possession, but refused to enforce a 37-year-old sale agreement.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to registration as proprietors under the contract of sale
The claim failed as the suit was time barred, the agreement was not produced, and the third-party purchasers had no privity with the respondent
Order 37 Rule 3 was intended for minor disputes arising out of a contract of sale of land, not specific performance claims. The suit filed 37 years after the alleged agreement was time barred. No agreement was placed before the court to establish breach, and the persons who bought portions from the original purchasers had no agreement with the respondent and could not enforce it.
Title by adverse possession
The applicant and those he represented acquired the portions they occupied by adverse possession
Section 38(1) of the Limitation of Actions Act and Order 37 Rule 7 allow a claim for registration by adverse possession by Originating Summons. The respondent did not defend the suit and the averments of purchase in 1979, taking of possession, informal subdivision and uninterrupted occupation of over 12 years were unrebutted. Applying Kimani Ruchine and Wambugu v Njuguna, the claim was established.
Costs
Each party to bear its own costs since the suit was undefended and no wrongdoing by the respondent was established
Costs are at the discretion of the court. As the claim was undefended and no wrongdoing by the respondent was established, each party bearing its own costs was appropriate.
Legal principles established
#- To acquire title by adverse possession the claimant must prove possession as of right, without force, secrecy or evasion, continuous and unbroken for the statutory period
- The proper test of adverse possession is whether the title holder has been dispossessed or has discontinued possession for the statutory period
Court orders
#- 1.Declaration that the applicant and sixteen persons named in the Authority dated 12th January 2016 have acquired portions of L.R No. 10874/22 by adverse possession
- 2.The respondent to transfer the suit property to the applicant to hold in trust for himself and the sixteen other persons within 30 days, failing which the Deputy Registrar is authorised to execute the instrument of transfer
- 3.The applicant to sub-divide the suit property in terms of the draft sub-division scheme annexed as 'NK3', subject to conditions of the approving authorities
- 4.Each party to bear its own costs of the suit
- 5.Liberty to apply limited to enforcement or execution of the orders
- Jurisdiction invoked
- Order 37 Rules 3 and 7 of the Civil Procedure Rules; Section 38(1) of the Limitation of Actions Act (Chapter 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Njoroge Kibiri (Suing on his own behalf and on behalf of 17 others) v Mugwathi Farms Limited [2020] KEELC 853 (KLR)", Case Analysis (2020). Originating Summons (not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/853/eng@2020-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.