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ELCDismissedOriginating Summons dated 14th March 2017 (Thika)· [2020] KEELC 2138 (KLR)

John Kamande Maringi & 2 others v Joseph Njoroge Kamau & another [2020] KEELC 2138 (KLR)

Environment and Land Court
15 June 2020
3,227 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs, sons of the late Michael Maringi Kanyugi, sued by Originating Summons seeking declarations that they had acquired one-half of parcel Kakuzi/Ithanga/Gituamba Block 1/103 by adverse possession and that the Defendants' title to that half stood extinguished. They relied on a sale agreement of 8th October 1997 between their father and the 1st Defendant for Kshs.100,000/=, alleging the family took possession, built homes and occupied the land from 1997. The Defendants denied any possession, contended the sale was frustrated for want of Land Control Board consent, and filed a preliminary objection on locus standi and privity. The court framed three issues. On the preliminary objection, it held the adverse possession claim was brought in the Plaintiffs' own right and not on behalf of their father's estate, so no grant of letters of administration was needed; the objection was dismissed with costs to the Plaintiffs, though the privity ground was not a pure point of law. On the substantive claim, the court found the sale agreement did not provide for immediate possession, no photographic or other evidence of occupation was produced, the Plaintiffs only lodged a caution in September 2016, and a pending criminal case arising from an attempted entry in September 2016 corroborated the Defendants' account. The Plaintiffs thus failed to prove uninterrupted quiet possession for over twelve years or dispossession of the registered owners. The Originating Summons was dismissed with costs to the Defendants. Judgment was delivered online pursuant to COVID-19 directions.

Key legal issues

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01

Whether the Plaintiffs, not being administrators of the deceased purchaser's estate, had locus standi to sue

Holding

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

Reasoning

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.

p. 4
02

Whether the Plaintiffs proved adverse possession of ½ share of the suit property

Holding

The claim failed; possession of more than 12 years was not proved

Reasoning

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.

p. 4
03

Who should bear the costs of the suit

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Originating Summons is dismissed entirely with costs to the Defendants
  2. 2.The Defendants Notice of Preliminary Objection dated 4th April 2018 is found not merited and is dismissed entirely with costs to the Plaintiffs

Authorities

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Legislation

  • Land Control ActCap 302 (consent to transfer)
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (9)

  • Sarah Nyambura Kungu Vs David Njoroge Thige
    Civil Appeal No. 20 of 1988
  • Mukisa Biscuits Manufacturing Co Ltd Vs West End Distributors Ltd
    (1969) EA 697
  • Quick Enterprises Ltd Vs Kenya Railways Corporation
    Kisumu HCCC No. 22 of 1999
  • Law Society of Kenya Vs Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000
  • Alfred Njau and others Vs City Council of Nairobi
    (1982) KAR 229
  • James Mwangi & Others Vs Mukinye Enterprises Ltd
    Nairobi HCCC No. 3912 of 1986
  • Wambugu Vs Njuguna
    (1983) KLR 172
  • Littledale v Liverpool College
    (1990) I Ch. 19
  • Leigh v Jack
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcels and claims in adverse possession

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, "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.