Juliana Kairu Gatumo v Philip Githongo Wainaina [2020] KEELC 1561 (KLR)
The bottom line
#A Kenyan court handed a woman full ownership of land she openly occupied and farmed for over 12 years, even though someone else held the title.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established adverse possession of the suit property
Yes. Unchallenged evidence of open, exclusive and continuous possession since 1980, with development of the land, satisfied all the elements of adverse possession.
The court applied the test in Kasuve v Mwaani Investments Ltd, requiring exclusive, open and uninterrupted possession for 12 years. The Defendant, served by substituted service, did not enter appearance, so the Plaintiff's evidence was unchallenged. The court accepted that the Plaintiff had possessed and developed the land by constructing dwelling houses and planting perennial crops since 1980, far exceeding the statutory 12-year period, and held her claim proved.
Costs of the suit
Despite the general rule that costs follow the event under Section 27 of the Civil Procedure Act, the court made no order as to costs because the claim was undefended.
The court acknowledged its discretion and the general rule that a successful litigant should ordinarily be awarded costs. However, because the Respondent did not defend the Applicant's claim for adverse possession, the court exercised its discretion to direct that there be no order as to costs.
Legal principles established
#- To be entitled to land by adverse possession, the claimant must prove exclusive, open possession as of right without interruption for 12 years, and title by adverse possession can be acquired for part of the land
Court orders
#- 1.The Defendant's title to land parcel No. Nthawa/Riandu/881 occupied by the Plaintiff and her family is extinguished
- 2.Land parcel No. Nthawa/Riandu/881 be registered in the name of the Plaintiff, Juliana Kairu Gatumo, by way of adverse possession
- 3.The Plaintiff be issued with a title deed to land parcel No. Nthawa/Riandu/881
- 4.Production of the original title deed, Land Control Board consents and transfer form over land parcel No. Nthawa/Riandu/881 to the Land Registrar be dispensed with at the time of registration of the Plaintiff as proprietor by adverse possession
- 5.No order as to costs
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (Cap. 22) and Order 37 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juliana Kairu Gatumo v Philip Githongo Wainaina [2020] KEELC 1561 (KLR)", Case Analysis (2020). E.L.C. Case No. 43 of 2018 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1561/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.