John Kamande Maringi & 2 others v Joseph Njoroge Kamau & another [2020] KEELC 2138 (KLR)
The bottom line
#The Environment and Land Court in Thika dismissed a family's adverse possession claim because they couldn't prove 12 years of actual occupation of the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs, not being administrators of the deceased purchaser's estate, had locus standi to sue
The preliminary objection on locus standi failed; the claim was brought in the Plaintiffs' own right under the Limitation of Actions, not on behalf of the estate
The court accepted that the reference to the late father's purchase merely laid the basis for how the Plaintiffs entered possession. The claim for adverse possession was personal to the Plaintiffs, who alleged continuous occupation since 1997 in their own capacity, so no grant of letters of administration was required. The court relied on the Mukisa Biscuits definition of a preliminary objection and held the capacity point met its criteria but failed on merit. The privy-to-contract ground required ascertainment of facts and was not a pure point of law.
Whether the Plaintiffs proved adverse possession of ½ share of the suit property
The claim failed; possession of more than 12 years was not proved
The court found the sale agreement did not show the purchaser was to take immediate possession, the Plaintiffs produced no photographs or evidence of the houses and development they alleged, the caution on the title was only lodged on 22nd September 2016, and a criminal case arising from an alleged entry in September 2016 supported the Defendants' account. On the balance of probabilities the Plaintiffs did not prove clear, uninterrupted and quiet possession for over 12 years, nor dispossession of the registered owners.
Who should bear the costs of the suit
Costs follow the event; the Defendants as successful litigants got costs of the Originating Summons, while the Plaintiffs got costs of the dismissed preliminary objection
Section 27 of the Civil Procedure Act gives the court discretion over costs, which ordinarily follow the event. Having lost the suit, the Plaintiffs were to pay the Defendants' costs of the Originating Summons. However, because the Defendants' preliminary objection was itself dismissed, costs of that objection were awarded to the Plaintiffs.
Legal principles established
#- A person claiming adverse possession must show continuous uninterrupted occupation of land for over 12 years
- The ingredients of adverse possession are clear possession, lack of consent of the owner, and occupation of more than 12 years before action
- A preliminary objection raises a pure point of law capable of disposing of the matter without ascertainment of facts
- Claimants in their own right need not take letters of administration to the estate of a deceased predecessor in order to claim adverse possession founded on their own possession
- To defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil
Court orders
#- 1.The Originating Summons is dismissed entirely with costs to the Defendants
- 2.The Defendants Notice of Preliminary Objection dated 4th April 2018 is found not merited and is dismissed entirely with costs to the Plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcels and claims in adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kamande Maringi & 2 others v Joseph Njoroge Kamau & another [2020] KEELC 2138 (KLR)", Case Analysis (2020). Originating Summons dated 14th March 2017 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2138/eng@2020-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.