Lucy Wamugo Njeru v Amos Mucemi Kiboi [2020] KEELC 2089 (KLR)
The bottom line
#The Embu Environment and Land Court declared that a woman who openly farmed and lived on land since 1973 owns it by adverse possession, defeating the registered owner's eviction attempt.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved her claim for adverse possession
Yes - the Plaintiff's occupation since 1973 was open, continuous and exclusive, without the owner's consent or licence, dispossessing the true owner.
The court applied the elements in Kasuve v Mwaani Investments Ltd: exclusive possession, open and as of right, without interruption for 12 years. The Plaintiff occupied since 1973, erected dwelling houses and planted cash and food crops. The Defendant conceded neither he nor his late father had ever occupied or utilised the land. The court held these acts were inconsistent with the registered owner's rights and answered the issue in the affirmative.
Whether the Defendant was entitled to the eviction order sought in the counterclaim
No - the Defendant's right to recover the suit property was extinguished by operation of law and the eviction claim was statute-barred.
Having found adverse possession established, the court held that by virtue of Sections 7, 37 and 38 of the Limitation of Actions Act the Defendant's right to recover the property was extinguished by operation of law. The consequence was that the Defendant's counterclaim for eviction was statute-barred, and the issue was answered in the negative.
Who shall bear the costs of the suit and counterclaim
Each party shall bear his own costs, departing from the general rule that costs follow the event.
Although costs are discretionary and ordinarily follow the event under the proviso to Section 27 of the Civil Procedure Act, the court considered the nature of the action and the fact that the Plaintiff would acquire the property through adverse possession. It therefore directed that each party bear their own costs of both the originating summons and the counterclaim.
Legal principles established
#- To be entitled to land by adverse possession, the claimant must prove exclusive, open possession as of right without interruption for 12 years, and a title by adverse possession can be acquired for part of the land.
- Where adverse possession is established, the registered owner's right to recover the land is extinguished under Sections 7, 37 and 38 of the Limitation of Actions Act, rendering an eviction claim statute-barred.
Court orders
#- 1.A declaration under Section 38 of the Limitation of Actions Act (Cap. 22) that the Plaintiff has become entitled to be registered as proprietor of Title No. Evurore/Nguthi/2253 in place of the Defendant on account of adverse possession.
- 2.The Defendant shall execute all documents and instruments to facilitate the transfer of the suit property to the Plaintiff, in default of which the Deputy Registrar of the court shall do so on his behalf.
- 3.The Defendant's suit, formerly Embu CMCC No. 34 of 2014, is dismissed in its entirety.
- 4.Each party shall bear his own costs of the suit and counterclaim.
- Jurisdiction invoked
- Sections 28(h) of the Land Registration Act, 2012; Order 37 of the Civil Procedure Rules; Sections 7, 17, 18, 37 and 38 of the Limitation of Actions Act (Cap. 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucy Wamugo Njeru v Amos Mucemi Kiboi [2020] KEELC 2089 (KLR)", Case Analysis (2020). E.L.C. Case No. 8 of 2018 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2089/eng@2020-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.