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ELCAllowedOriginating Summons dated 19th October 2017· [2020] KEELC 1789 (KLR)

Raphael Njoroge Warari & 12 others v Jecinta Nyakinyua Karanja [2020] KEELC 1789 (KLR)

Environment and Land Court
9 July 2020
LGL. GACHERU
2,206 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court declared 13 buyers owners of Ruiru land they occupied openly for over 12 years, proving land bought informally can ripen into title.

What this practically means

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Executive summary

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Thirteen Plaintiffs filed an Originating Summons dated 19th October 2017 seeking a declaration that they had acquired title by adverse possession to L.R. No. Ruiru East Block 2/3319 in Ruiru Sub-County, Kiambu County, and an order that the parcel be subdivided and transferred to them in plots of 40 by 60 feet each. They averred that they bought the plots in 2003 from Samuel Njuguna Gatu t/a Gatu Properties, a chain of sale traceable to the Defendant, and that since then they had built permanent homes or cultivated their respective plots in exclusive, continuous and uninterrupted possession without the Defendant's consent. The Defendant was served but did not enter appearance or defend the suit. At the hearing, PW1 Raphael Njoroge Warari adopted his affidavit and witness statement and produced documentary exhibits. The Court, presiding in Thika, held that even in an undefended suit the plaintiff must discharge the burden of proof under Section 107 of the Evidence Act. Framing two issues - whether adverse possession was proved and who should bear costs - the Court applied Section 38 of the Limitation of Actions Act and found that the Plaintiffs had been in actual, continuous, exclusive and open occupation from 2003, well beyond the 12-year limitation period, dispossessing the Defendant adversely to her registered title. The suit was allowed entirely with costs to the Plaintiffs.

Key legal issues

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01

Whether the Plaintiffs proved adverse possession of L.R. No. RUIRU EAST BLOCK 2/3319

Holding

Yes - the Plaintiffs were in actual, continuous, exclusive and uninterrupted occupation from 2003, exceeding 12 years, adverse to the Defendant's title.

Reasoning

The Plaintiffs entered in 2003 after purchase from Samuel Njoroge Gatu, built permanent homes or cultivated their plots, and the Defendant never interrupted their occupation. The suit filed in 2017 came after more than 12 years. Although the suit was undefended, the Court interrogated the uncontroverted evidence, including photographs and an official search confirming the Defendant's registration, and found the elements of adverse possession under Section 38 of the Limitation of Actions Act satisfied.

p. 3
02

Who bears the costs of the suit

Holding

The Plaintiffs, as successful litigants, are awarded costs under Section 27 of the Civil Procedure Act.

Reasoning

The Court applied the ordinary rule that costs follow the event. Having succeeded entirely on their claim, the Plaintiffs were entitled to the costs of the Originating Summons.

p. 3

Legal principles established

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  • Undefended suits are not automatically proved; the plaintiff must still discharge the burden of proof.
  • Dispossession requires acts inconsistent with the registered owner's enjoyment of the soil.
  • Exclusive, open and uninterrupted possession for the limitation period matures into title by adverse possession even where the possessor bought the land.

Court orders

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  1. 1.The Originating Summons dated 19th October 2017 is allowed entirely.
  2. 2.A declaration that the Plaintiffs have acquired title by Adverse Possession to L.R. No. RUIRU EAST BLOCK 2/3319.
  3. 3.Costs of the Originating Summons awarded to the Plaintiffs.

Authorities

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Legislation

  • Evidence ActSection 107
  • Limitation of Actions ActSection 38(1) and (2)
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (4)

  • Gichinga Kibutha Vs Caroline Nduku
    (2018) eKLR
  • Wambugu Vs Njuguna
    (1983) KLR 172
  • Littledale Vs Liverpool College
    (1990) I Ch. 19
  • Samwel Nyakenogo Vs Samwel Orucho Onyaru
    [2010] eKLR
Jurisdiction invoked
Section 38(1) and (2) Limitation of Actions Act - application to the High Court for an order that the applicant be registered as proprietor by adverse possession

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, "Raphael Njoroge Warari & 12 others v Jecinta Nyakinyua Karanja [2020] KEELC 1789 (KLR)", Case Analysis (2020). Originating Summons dated 19th October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1789/eng@2020-07-09

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