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ELCPartially AllowedOriginating Summons dated 27.3.2018 (Meru)· [2020] KEELC 1709 (KLR)

M’Arithi Joel v Charity Njiru (as the administrator of the estate of M’Murithi Murugu and on her own behalf), Martha Riara M’Murithi, Jackson Mbaabu Riungu, Cecilia Ukima Frankline, Felicity Nkuene Muthamia, Edith Gakiiru M’Kaini & Eliphas Miriti Kiara (Environment & Land Case 11 of 2018) [2020] KEELC 1709 (KLR)

Environment and Land Court
14 July 2020
2,632 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued by originating summons filed 28.3.2018 claiming 2 acres out of land parcel Igoji/Kianjogu/476, now subdivided into parcels Igoji/Kianjogu/2720-2726, by adverse possession. He alleged occupation since about 1970, when M'Murithi M'Murugu, a circumciser for whom he worked as an aide, allowed him to settle on the land; he built a home, married, raised five children and buried his mother (1985) and wife (1998) there. He discovered only in late 2017 that the 1st respondent, a daughter of the deceased, had filed succession cause No. 89 of 2004, had the suit land added to the estate by rectification in 2013, and subdivided it with titles issuing on 5.3.2018. The defence, advanced by the 1st and 3rd respondents after counsel abandoned the matter, admitted the occupation and burials but offered only half an acre, asserting the plaintiff was not a beneficiary. The court set out the four ingredients of adverse possession and held that although entry was permissive, there was no evidence the consent was withdrawn before M'Murithi's death on 5.10.1992, when time began to run; the stealthy succession process and uprooting of the plaintiff's coffee showed the family had not consented thereafter. Twenty-six years having elapsed, the claim had matured in 2004, and the subsequent subdivision and titling could not extinguish it. Excluding the 7th respondent's registered 2 acres (parcel 2723), the court found 2 acres for the plaintiff reasonable. Judgment was entered declaring the plaintiff entitled to 2 acres by adverse possession, with orders for excision, cancellation of affected titles, discharge of subsisting inhibitions, Deputy Registrar's authority to execute documents, each party bearing own costs, and a 30-day stay. Judgment was delivered electronically under COVID-19 practice directions.

Key legal issues

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01

Effect of initial permissive entry on a claim of adverse possession

Holding

Entry with the owner's consent does not begin adverse possession; time begins to run when that permission ceases, here on the death of the owner M'Murithi in October 1992

Reasoning

The plaintiff entered the land with M'Murithi's consent as his aide. There was no evidence the consent was withdrawn before M'Murithi died on 5.10.1992. Thereafter the family did not consent to the occupation - the succession proceedings and subdivision were conducted without the plaintiff's involvement, and his coffee was uprooted. Time therefore began running from October 1992 and 26 years had lapsed when the suit was filed.

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02

Whether succession, subdivision and titling defeat a matured adverse possession claim

Holding

They do not; a claim that matured 12 years after the owner's death survives subdivision and issuance of titles to beneficiaries and purchasers

Reasoning

The 1st respondent obtained letters of administration, had parcel 476 included in the estate by rectification in 2013, subdivided it and titles issued on 5.3.2018 - all without the plaintiff's knowledge. The court held such processes cannot extinguish the plaintiff's claim which matured in 2004, distinguishing Mate Gitabi where no administration had been taken out.

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03

Quantum of the acreage acquired by adverse possession

Holding

Two acres; the plaintiff's open, fenced and long-standing occupation could not have been limited to half an acre as the respondents contended

Reasoning

The suit land was 5 acres; the 7th respondent's registered 2 acres (parcel 2723) was excluded. Only the plaintiff and the 7th respondent used the land, with distinct fenced boundaries, so the respondents' offer of half an acre was unreasonable. The plaintiff's claim to 2 acres was found reasonable in the circumstances.

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Legal principles established

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  • For a claim of adverse possession the claimant must prove continuous and uninterrupted possession for 12 years or more, open and notorious to the owner, without the owner's permission and asserting a hostile title
  • Subsequent succession proceedings, subdivision and issuance of titles do not extinguish an adverse possession claim that has already matured

Court orders

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  1. 1.Declaration that the plaintiff has become entitled to 2 acres out of the former land parcel Igoji/Kianjogu/476, now parcels Igoji/Kianjogu/2720-2726, by way of adverse possession
  2. 2.Order for the excision of 2 acres out of parcels Igoji/Kianjogu/2720-2726 but excluding parcel Igoji/Kianjogu/2723 belonging to the 7th respondent
  3. 3.Cancellation of the titles affected by the excision to facilitate registration of the two acres in the name of M'Aritha Joel
  4. 4.Discharge of any subsisting orders of injunction or inhibition in respect of the affected titles to facilitate implementation
  5. 5.Authority for the Deputy Registrar of the court to sign any requisite documents to facilitate transfer and registration of the 2 acres to the plaintiff
  6. 6.Each party to bear their own costs of the suit
  7. 7.Stay of 30 days granted

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1

Cases cited (4)

  • Richard Mugo Kiambo vs James Muriuki Kiambo
    Court of Appeal No. 46 of 2013
  • Kahindi Ngala Mwagandi vs. Mtana Lewa
    ELC No. 108 of 2011 Malindi
  • Phyllis Wanjiru Kamau vs. Wilson Gichuhi Gachangwe & 2 others
    Thika ELC No. 169 of 2017
  • Mate Gitabi vs. Jane Kaburu Muga & 3 others
    Nyeri Court of Appeal Civil Case No. 43 of 2015
Jurisdiction invoked
Article 162(2)(b) of the Constitution / Environment and Land Court Act (original jurisdiction over land); claim under the doctrine of adverse possession and the Limitation of Actions Act

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, "M’Arithi Joel v Charity Njiru (as the administrator of the estate of M’Murithi Murugu and on her own behalf), Martha Riara M’Murithi, Jackson Mbaabu Riungu, Cecilia Ukima Frankline, Felicity Nkuene Muthamia, Edith Gakiiru M’Kaini & Eliphas Miriti Kiara (Environment & Land Case 11 of 2018) [2020] KEELC 1709 (KLR)", Case Analysis (2020). Originating Summons dated 27.3.2018 (Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1709/eng@2020-07-14

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