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ELCPartially AllowedE.L.C. Case No. 5 of 2015 (O.S.)· [2020] KEELC 1779 (KLR)

Njiru Gikingi v Nyaga Muthangato [2020] KEELC 1779 (KLR)

Environment and Land Court
9 July 2020
YAY.M. Angima
1,262 words in judgment
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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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By an originating summons dated 16 January 2015 brought under Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, Njiru Gikingi sought a determination that he had acquired Land Parcel Nthawa/Siakago/1683 by adverse possession. He contended that he had occupied the suit property since 1960, residing there with his family, building dwelling houses, planting trees and crops, and burying his late mother and grandmother, all without objection by the registered owner, Nyaga Muthangato. Although served at his home, the Respondent filed no response, and the suit proceeded undefended before Bw'onwonga J in the High Court. Judgment was delayed owing to the jurisdictional bar confirmed by the Supreme Court in Republic v Karisa Chengo, and the file was eventually referred to the Environment and Land Court at Embu, where Angima J prepared and delivered judgment. The court condensed the nine questions into two: whether the Applicant had proved adverse possession, and costs. Applying the elements summarised in Kasuve v Mwaani Investments, and noting that the uncontroverted evidence showed continuous, exclusive and open occupation far exceeding 12 years, the court held that the Respondent's right to recover the land was extinguished under the Limitation of Actions Act and declared the Applicant entitled to be registered as proprietor in place of the Respondent. Although costs ordinarily follow the event under Section 27 of the Civil Procedure Act, the court, because the Respondent never defended the claim, made no order as to costs.

Key legal issues

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01

Whether the Applicant proved adverse possession of Nthawa/Siakago/1683

Holding

Yes; the Applicant was in exclusive, open, continuous and uninterrupted possession for over 12 years, so the Respondent's right to recover the land is extinguished

Reasoning

The Applicant testified with two sons that he was born and raised on the land, built residential houses, planted trees and crops including Muguka, and buried family members there. The Respondent, though served, filed no response and led no controverting evidence. The court found the statutory period of at least 12 years' dispossession met and that a change of registered ownership does not defeat such a claim.

p. 2
02

Costs of the suit

Holding

No order as to costs despite the Applicant's success

Reasoning

Costs are discretionary but ordinarily follow the event under Section 27 of the Civil Procedure Act. Because the Respondent never defended the claim, the court exercised its discretion to make no order as to costs.

p. 2

Legal principles established

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  • A claimant seeking title by adverse possession must prove exclusive, open and uninterrupted possession for 12 years, and title by adverse possession can be acquired for part of land
  • A change of ownership of the suit property does not necessarily affect a claim for adverse possession
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless the court directs otherwise

Court orders

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  1. 1.The Respondent's right to recover the suit property from the Applicant has been extinguished under the Limitation of Actions Act (Cap. 21)
  2. 2.A declaration that the Applicant, Njiru Gikingi, has become entitled to be registered as proprietor of Title No. Nthawa/Siakago/1683 in place of the Respondent, Nyaga Muthangato
  3. 3.There shall be no order as to costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38 (Cap. 22)
  • Civil Procedure RulesOrder 37 Rule 7
  • Civil Procedure ActSection 27 (Cap. 21)

Cases cited (3)

  • Republic Vs Karisa Chengo & 2 Others
    [2017] eKLR
  • Kasuve Vs Mwaani Investments Ltd & 4 Others
    [2004] 1 KLR 184
  • Wanja Vs Sakwa No. 2
    [1984] KLR 284
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap. 22) and Order 37 Rule 7 of the Civil Procedure Rules; Environment and Land Court Act (following transfer from the High Court per Republic v Karisa Chengo & 2 Others [2017] eKLR)

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, "Njiru Gikingi v Nyaga Muthangato [2020] KEELC 1779 (KLR)", Case Analysis (2020). E.L.C. Case No. 5 of 2015 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1779/eng@2020-07-09

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