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ELCDismissedOriginating Summons dated 24th July 2018· [2020] KEELC 1957 (KLR)

Joseph Ngareh Kanyeria v Sarah Wandia Njogu (Sued in her capacity as the Legal Representative of the Estate of Njogu Kibaka (Deceased) [2020] KEELC 1957 (KLR)

Environment and Land Court
8 May 2020
ECE.C. CHERONO
2,461 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kerugoya Environment and Land Court dismissed an adverse possession claim because the buyer's land sale agreement was invalid and he never proved paying the full price.

What this practically means

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Executive summary

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The plaintiff filed an Originating Summons dated 24th July 2018 under Section 38 of the Limitation of Actions Act, Order 37 Rule 7 of the Civil Procedure Rules and Sections 28(b) and 29 of the Land Registration Act, seeking cancellation of the registration of the current owner of land parcel MWEA/MUTITHI/STRIP/926 and registration of the parcel in his name on the basis of adverse possession. He claimed to have bought the land from the late Njogu Kibaka under a sale agreement dated 20th November 2005 for Kshs. 180,000/=, of which Kshs. 174,000/= was allegedly paid, and to have occupied the land for over twelve years. The defendant, the administrator of the deceased's estate, denied the sale and asserted that the plaintiff was a lessee who refused to vacate after a five-year lease. In cross-examination the plaintiff admitted the agreement lacked the parcel number, the seller's identification particulars and details of payment. The court framed three issues: whether the defendant's title was extinguished by adverse possession, whether the plaintiff acquired title by adverse possession, and costs. Applying Sospeter Wanyoike v Waithaka Kahiri, Mistry Valji v Janendra Raichand and Wambugu v Kamau Njuguna, the court held that the agreement, lacking the parcel number and consideration, was void for all purposes; that in adverse possession claims founded on sale agreements time runs only from payment of the last instalment, which the plaintiff did not prove; and that the plaintiff's entry and occupation being founded on an agreement, he was a licensee whose possession was not adverse. The suit was dismissed with costs to the defendant.

Key legal issues

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Whether the defendant's title was extinguished and the plaintiff acquired title by adverse possession

Holding

No. The sale agreement was void, the balance of the purchase price was not proved paid, and the plaintiff's occupation was that of a licensee pursuant to an agreement, so time did not run against the registered owner

Reasoning

The sale agreement lacked the parcel number, consideration and identification of parties and witnesses, making it void. Where adverse possession is founded on a sale agreement, limitation runs only from payment of the last instalment, which the plaintiff could not prove. Since entry was pursuant to an agreement with the owner, possession was not adverse; the plaintiff remained a licensee and failed to seek Land Control Board consent.

p. 3

Legal principles established

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  • In a case of adverse possession based on a sale agreement which has become null and void, the period of limitation starts to run from the time the last instalment is paid
  • A sale agreement that omits the parcel number, the consideration and the identification of the parties is not binding and is void for all purposes
  • A claim for adverse possession cannot crystallize where the person asserting the claim is in possession with the permission of the owner

Court orders

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  1. 1.The plaintiff's Originating Summons dated 24th July 2018 is dismissed with costs to the defendant

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure RulesOrder 37 Rule 7
  • Land Registration ActSections 28(b) and 29

Cases cited (8)

  • Mtana Lewa Vs Kahindi Ngala
    (2005) e K.L.R.
  • Felix Kipchoge Limo Langat Vs Robinson Kiplagat Tuwei
    (2018) e K.L.R.
  • Paul Mwangi Gachuru Vs Kamande Nguku
    (2017) e K.L.R.
  • Kipketer Togom Vs Isaac Cipriano Shingore
    (2012) e K.L.R.
  • Sospeter Wanyoike Vs Waithaka Kahiri
    (1979) K.L.R. 236 (also cited as (1979) K.L.R 36)
  • Samson B. Khwatenge Vs Philip W. Silungi
    ELC Case No. 75 of 2012 (Bungoma), reported in (2018) e K.L.R.
  • Mistry Valji Vs Janendra Raichand & 2 Others
    C.A No. 46 of 2015, reported in (2016) e K.L.R
  • Wambugu Vs Kamau Njuguna
    Civil Appeal No. 10 of 1982 (unreported)
Jurisdiction invoked
Section 38 of the Limitation of Actions Act as read with Order 37 Rule 7 CPR and Sections 28(b) and 29 of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Ngareh Kanyeria v Sarah Wandia Njogu (Sued in her capacity as the Legal Representative of the Estate of Njogu Kibaka (Deceased) [2020] KEELC 1957 (KLR)", Case Analysis (2020). Originating Summons dated 24th July 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1957/eng@2020-05-08

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