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ELCAllowedE.L.C. Case No. 104 of 2015 (O.S.) (Formerly Kerugoya ELC No. 93 of 2013)· [2020] KEELC 2097 (KLR)

Joachim Njuguna Mbugua & 2 others v Gitonga Francis Njeru [2020] KEELC 2097 (KLR)

Environment and Land Court
30 April 2020
YAY.M. Angima
1,095 words in judgment
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The bottom line

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An Embu court gave three men ownership of 0.7 acres they openly occupied and developed for over 35 years, because the owner never challenged them.

What this practically means

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Executive summary

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By an originating summons dated 7th May 2010 under Section 38 of the Limitation of Actions Act (Cap. 22) and Order XXXVI Rule 3D of the retired Civil Procedure Rules, three Plaintiffs sought a declaration that they had acquired 0.7 acres out of land parcel Nthawa/Gitiburi/1650 by adverse possession, that the Defendant's title was extinguished, and orders compelling him to effect the transfer. They claimed open, continuous and exclusive possession since 1985, having built rental houses and cultivated crops on the land. The Defendant denied possession and pointed to prior litigation between clans over the property, urging dismissal with costs. At trial the Plaintiffs called two witnesses, including the 3rd Plaintiff and Benson K. Ireri, and produced a surveyor's report. The Defendant tendered no evidence; his advocate filed no trial bundle and the court declined an adjournment given the suit's nine-year pendency. Framing the sole issue as whether the Plaintiffs had proved adverse possession to the required standard, the court applied the test in Kasuve v Mwaani Investments Ltd and accepted the unchallenged Plaintiffs' evidence as true, finding no evidence of interruption. Judgment was entered for the Plaintiffs: declarations that the Defendant's title to 0.7 acres was extinguished under Section 7 and that the Plaintiffs were entitled to be registered as proprietors under Section 38, an order for the Defendant to execute transfer documents in default of which the Deputy Registrar would do so, and each party bearing his own costs. Judgment was signed in chambers at Embu on 30th April 2020 due to Covid-19 and transmitted to the parties' advocates by email.

Key legal issues

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01

Whether the Plaintiffs proved adverse possession of 0.7 acres out of Nthawa/Gitiburi/1650 for over 12 years

Holding

The Plaintiffs proved open, continuous and exclusive possession since 1985, developing the land by building rental houses and cultivating crops, and their title by adverse possession was established

Reasoning

The court applied the elements in Kasuve v Mwaani Investments Ltd: exclusive, open possession as of right without interruption for 12 years. The Plaintiffs testified to occupation since 1985 and development of the land. The Defendant called no evidence, having been denied an adjournment given the suit's 9-year pendency, so the Plaintiffs' evidence stood unchallenged. There was no evidence of interruption or of any effect of previous suits on the claim, and the court found the claim proved to the required standard.

p. 2

Legal principles established

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  • To be entitled to land by adverse possession, a claimant must prove exclusive, open possession as of right and without interruption for 12 years, and title by adverse possession can be acquired for part of the land
  • Where a defendant fails to tender evidence in rebuttal, unchallenged plaintiff evidence is accepted as true

Court orders

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  1. 1.A declaration that the Defendant's title to 0.7 acres out of Title No. Nthawa/Gitiburi/1650 has become extinguished under Section 7 of the Limitation of Actions Act (Cap. 22)
  2. 2.A declaration that the Plaintiffs have become entitled to be registered as proprietors of 0.7 acres out of Title No. Nthawa/Gitiburi/1650 on account of adverse possession under Section 38 of the Limitation of Actions Act (Cap. 22)
  3. 3.The Defendant shall execute all necessary documents to effect the transfer of 0.7 acres out of Title No. Nthawa/Gitiburi/1650 to the Plaintiffs, in default of which the Deputy Registrar shall do so on his behalf
  4. 4.Each party shall bear his own costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSection 7
  • Registered Land ActCap 300
  • Civil Procedure Rules (1948, retired)Order XXXVI Rule 3D

Cases cited (3)

  • Kasuve Vs Mwaani Investments Ltd & 4 Others
    [2004] 1 KLR 184
  • Wanja Vs Sakwa No. 2
    [1984] KLR 284
  • Safarilink Aviation Limited V Trident Aviation Kenya Ltd & Another
    [2015] eKLR
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap. 22) and Order XXXVI Rule 3D of the retired Civil Procedure Rules (1948), original civil jurisdiction of the Environment and Land Court

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, "Joachim Njuguna Mbugua & 2 others v Gitonga Francis Njeru [2020] KEELC 2097 (KLR)", Case Analysis (2020). E.L.C. Case No. 104 of 2015 (O.S.) (Formerly Kerugoya ELC No. 93 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2097/eng@2020-04-30

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