Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedE.L.C. Case No. 101 of 2014· [2020] KEELC 2087 (KLR)

Daniel Kamau Ndichu v Peter Njeru Stanley [2020] KEELC 2087 (KLR)

Environment and Land Court
28 May 2020
YAY.M. Angima
1,977 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The court dismissed a 12-year land claim because buying land on instalments doesn't start the adverse possession clock until the deal clearly falls apart.

What this practically means

#

Executive summary

#
The plaintiff, son of the original claimant Ndichu Kahuha (deceased), brought an originating summons under Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules seeking a declaration of adverse possession over parcel Nthawa/Riandu/1235, an order extinguishing the defendant's title, cancellation of the defendant's registration and his own registration as proprietor. The deceased had purchased 2½ acres of the approximately 5-acre parcel in 1998 for Kshs. 62,500, paying Kshs. 42,500, and allegedly took possession that year. The defendant admitted the sale but contended it was subject to partitioning and Land Control Board consent, that the deceased never occupied the land (his 2009 entry attempt having been thwarted by the Location Chief), that he refunded the purchase price, and that he sold the whole parcel in 2011 to Peter Nyaga Ngari who occupies and has developed it. The court framed three issues and applied Wambugu v Njuguna and Kasuve v Mwaani Investments. It found no dispossession for the statutory 12 years: the defendant's mother resided on part of the property until 2008, so even exclusive possession could only run from 2008 - about three years before the 2011 filing. Further, the deceased's occupation stemmed from the instalment sale agreement; possession of a purchaser pending completion becomes adverse only upon repudiation, and the agreement was repudiated only in 2011 when the defendant sold to a third party. The claim failed and the originating summons was dismissed with costs to the defendant.

Key legal issues

#
01

Whether adverse possession was proved

Holding

No. The Defendant's mother occupied part of the suit property until 2008 and the deceased's possession was permissive under the sale agreement, so limitation did not begin to run before 2011.

Reasoning

The plaintiff conceded the defendant's mother resided on the property until 2008, and the parcel was never subdivided. Even if the deceased possessed exclusively, time could only run from 2008, giving barely 3 years. Further, the deceased entered under a sale agreement paid by instalments; possession under a pending contract is not adverse until the contract is repudiated, which occurred only in 2011 when the defendant sold to a third party.

p. 3
02

Entitlement to reliefs

Holding

Not entitled; the claim having failed, none of the reliefs sought could issue.

Reasoning

Having found that the plaintiff failed to demonstrate adverse possession to the required standard, the court held it follows that the plaintiff is not entitled to any of the reliefs in the originating summons, and answered the second issue in the negative.

p. 3
03

Costs

Holding

Costs to the successful Defendant following the event.

Reasoning

Under section 27 of the Civil Procedure Act, costs follow the event and a successful party ordinarily gets costs absent good reason to the contrary. No reason existed to deprive the successful defendant of costs.

p. 3

Legal principles established

#
  • A claimant must prove exclusive, open possession as of right, without interruption, for 12 years to acquire title by adverse possession.
  • Where occupation is under a contract of sale pending completion, possession becomes adverse only once the contract is repudiated.
  • Costs follow the event under the proviso to section 27 of the Civil Procedure Act.

Court orders

#
  1. 1.The Plaintiff's originating summons dated 14th October 2011 is dismissed
  2. 2.The Defendant is awarded costs of the suit

Authorities

#

Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure Rules, 2010Order 37 Rule 7(1)(2) & (3)
  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure ActSection 27 (proviso)
  • Registered Land Act

Cases cited (6)

  • Wambugu Vs Njuguna
    [1983] KLR 172
  • Githu Vs Ndeete
    [1984] KLR 776
  • Kasuve Vs Mwaani Investments Ltd & 4 Others
    [2004] 1 KLR 184
  • Kimani Ruchine Vs Swift Rutherfords & Co Ltd
    [1980] KLR 10
  • Wanja Vs Sakwa No. 2
    [1984] KLR 284
  • Hussein Janmohammed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap. 22) and Order 37 Rule 7(1)(2) & (3) of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Daniel Kamau Ndichu v Peter Njeru Stanley [2020] KEELC 2087 (KLR)", Case Analysis (2020). E.L.C. Case No. 101 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2087/eng@2020-05-28

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