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ELCPartially AllowedOriginating Summons dated 5th October 2015· [2020] KEELC 2171 (KLR)

Joyce Njoki Mburu v David Mburu Mararo [2020] KEELC 2171 (KLR)

Environment and Land Court
11 June 2020
2,728 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a tenant who stays on after being told to leave can own the land she occupies after 12 years — but only the portion she actually uses.

What this practically means

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Executive summary

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The plaintiff filed an Originating Summons on 5th October 2015 seeking a declaration that she had acquired title to Gatamaiyu/Kamburu/251 (approximately 1.6 acres) by adverse possession under sections 37 and 38 of the Limitation of Actions Act, that the defendant's title was extinguished, and that the defendant transfer the property to her. She claimed she entered the land in 1984 as the defendant's wife, built a house in 1988, and occupied it openly for over 30 years. The defendant admitted registered ownership but denied the marriage, asserting the plaintiff was his tenant occupying a two-roomed house on 1/8 acre while he used the rest for tea and subsistence farming. He relied on a 1994 Land Disputes Tribunal suit and on the divorce cause in which the lower court found the marriage unproven. The court adopted that finding and held the plaintiff entered as a tenant, so her occupation was initially permissive. Time began to run in 1994 when the defendant ordered his tenants, including the plaintiff, to vacate; she remained, paid no further rent, and the defendant took no eviction steps. Her cultivation and dairy keeping were inconsistent with the defendant's ownership. The court found the plaintiff in open, continuous occupation for over 21 years and declared title by adverse possession to the portion she occupied, holding the defendant's title thereto extinguished under section 17 of the Act. Because neither party proved the extent of occupation, the court ordered a Government Surveyor to demarcate it, subject to a minimum of 1/8 acre, with the Deputy Registrar empowered to execute transfer documents on default. Each party bears its own costs. The suit succeeded only in part, as the claim over the whole parcel failed.

Key legal issues

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01

Capacity in which the plaintiff occupied the suit property

Holding

The court accepted that the plaintiff entered as the defendant's tenant, since the lower court in Divorce Cause No. 245 of 2011 had found she failed to prove marriage

Reasoning

Although the plaintiff claimed she entered as the defendant's wife, the defendant disowned the relationship. The question of marriage had already been determined by the Chief Magistrate's court in Divorce Cause No. 245 of 2011, which found the plaintiff failed to prove the marriage. The court adopted that finding and concluded the plaintiff entered as a tenant, making her initial possession permissive.

p. 3
02

When time for adverse possession began to run

Holding

Time began running in 1994 when the defendant gave the plaintiff notice to vacate and she refused, with no new tenancy created by payment of rent or any eviction action by the defendant

Reasoning

Permissive possession is not adverse; time runs only from determination of the licence. The defendant ordered his tenants to vacate in 1994; the plaintiff remained claiming insufficient notice. The defendant took no steps to evict her, and no rent was paid thereafter, so no fresh tenancy arose. Her continued occupation, cultivating crops and keeping dairy cattle, was inconsistent with the owner's title, so the limitation period of over 21 years elapsed.

p. 3
03

Whether the defendant's title was extinguished and over what area

Holding

Title to the portion actually occupied by the plaintiff was extinguished by section 17 of the Limitation of Actions Act; the defendant holds that portion in trust for her, with the minimum extent fixed at 1/8 acre pending survey

Reasoning

Neither party proved their rival measurements (1/2 acre claimed by the plaintiff; 1/8 acre by the defendant). The court declined to adopt either and ordered a survey by a Government Surveyor to demarcate the occupied portion, with a floor of 1/8 acre, and authorised the Deputy Registrar to execute transfer documents if the defendant failed to comply.

p. 3

Legal principles established

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  • Possession under a tenancy or licence does not become adverse until the tenancy/licence is determined; where the owner gives notice to vacate and the occupant refuses but pays no further rent, no new tenancy arises and time runs against the owner
  • Occupation by cultivation and rearing of dairy cattle that is inconsistent with the registered owner's enjoyment of the land constitutes dispossession sufficient for adverse possession
  • The court will not adopt unproved measurements of the land in occupation but may order an actual measurement to ascertain the portion occupied

Court orders

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  1. 1.Declaration that the plaintiff has acquired by adverse possession the portion of Gatamaiyu/Kamburu/251 which she is occupying and using
  2. 2.The defendant shall cause a survey and subdivision by a Government Surveyor at the cost of the plaintiff to demarcate the portion occupied and used by the plaintiff, and shall thereafter transfer that portion to her
  3. 3.The portion to be transferred shall under no circumstance be less than 1/8 of an acre
  4. 4.If the defendant fails to comply, the Deputy Registrar of the court is authorised to execute any document or instrument necessary to enforce the order
  5. 5.The plaintiff shall meet the statutory charges and other costs payable on the transfer
  6. 6.Either party at liberty to apply limited to issues arising in the course of the subdivision
  7. 7.Each party shall bear its own costs of the suit

Authorities

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Legislation

  • Limitation of Actions Act, Chapter 22 Laws of Kenyasections 37 and 38
  • Limitation of Actions Act, Chapter 22 Laws of Kenyasection 17

Cases cited (7)

  • Salim v Boyd and Another
    [1971] E.A. 550
  • Kimani Ruchine & Another v Swift, Rutherford Co. Ltd. & another
    [1977] KLR 10
  • Wambugu v Njuguna
    [1983] KLR 172
  • Jandu v Kirpal
    [1975] E.A 225
  • Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwen & another
    [2015] eKLR
  • Samuel Miki Waweru v Jane Njeri Richu
    Civil Appeal No. 122 of 2001 (UR)
  • Githu v Ndeete
    [1984] KLR 776
Jurisdiction invoked
Original jurisdiction under sections 37 and 38 of the Limitation of Actions Act, Chapter 22, Laws of Kenya

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, "Joyce Njoki Mburu v David Mburu Mararo [2020] KEELC 2171 (KLR)", Case Analysis (2020). Originating Summons dated 5th October 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2171/eng@2020-06-11

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