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ELCDismissedNairobi ELC Originating Summons (by implication) dated 18/9/2012 re Land Parcel LR 13330/542· [2020] KEELC 2244 (KLR)

Joyce Njeri Kariuki v Joreth Limited & 3 others [2020] KEELC 2244 (KLR)

Environment and Land Court
2 June 2020
6,095 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a family's land claim by adverse possession because the 12-year clock stopped when their relative died before obtaining a succession grant.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Josephat Kariuki Marima, brought an originating summons under Sections 37 and 38 of the Limitation of Actions Act seeking a declaration that the estate had acquired LR 13330/542 (Thome Estate, Nairobi) by adverse possession, registration as proprietor, and an order directing the defendants to transfer the property. Her case was that the deceased purchased Plots 322 and 324 from Thome Farmers No 5 Limited, entered the suit property in 1995, and that possession continued through his daughter and son-in-law (PW2) until suit. Joreth Limited (1st defendant) maintained it was always the registered proprietor, that the deceased and plaintiff never paid the Kshs 200,000 required under the 2002 consent in HCCC No 6206/1992, and that the 1992 suit interrupted any possession. The 2nd to 4th defendants, who bought the property in 2011, denied the plaintiff's possession and locus standi. The court framed two issues: whether the estate acquired title by adverse possession, and costs. Holding that adverse possession, if any, began only in 1995 and that time stopped on the deceased's death in February 2003 - resuming only upon issuance of a grant to a personal representative - the court found the 12-year threshold unmet by September 2012. The originating summons was dismissed. In view of the dispute's origins in the Joreth Limited/Thome Farmers No 5 Limited disagreement, no costs were awarded.

Key legal issues

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01

Whether the estate acquired title by adverse possession

Holding

No - even on the plaintiff's own case, adverse possession commenced in 1995 at the earliest and only 8 years had elapsed when the deceased died in February 2003; no grant issued until August 2012, so the 12-year threshold was not met

Reasoning

The court found that PW2 and his wife occupied the plot only from December 1995 as licensees of the deceased. By the deceased's death in February 2003, only 8 years had run. The court held that on the death of an adverse possessor, time stops running and only resumes upon issuance of a grant to a personal representative who continues the adverse possession. The limited grant was issued on 10/8/2012, roughly 40 days before suit, so 12 years had not accrued.

p. 7
02

Effect of the death of an adverse possessor on the limitation period

Holding

Time stops running at death and resumes only when a personal representative is appointed and continues the adverse possession activities

Reasoning

Relying on Section 13 of the Limitation of Actions Act, the court reasoned that a right of action to recover land accrues only while the land is in adverse possession. Once the adverse possessor dies, there is no party against whom recovery proceedings can be brought until a personal representative is appointed. Until then, nobody has legal capacity to engage in adverse possession on behalf of the estate.

p. 6
03

Whether the filing of Nairobi HCCC No 6206/1992 interrupted adverse possession

Holding

The court did not find it necessary to decide this question definitively, as the claim failed on the 12-year requirement

Reasoning

Although counsel for the plaintiff argued, relying on Patrick Magu Mwangi Kimnyu v Joreth Limited, that the 1992 suit could not interrupt possession since the plaintiff was not privy to it, and the 1st defendant argued it constituted an interruption, the court's dismissal rested on the failure to establish the requisite 12-year period, making interruption analysis unnecessary.

p. 7

Legal principles established

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  • When an adverse possessor dies, time stops running for the purposes of adverse possession and resumes only when a grant is issued to the deceased's personal representative who continues the adverse possession activities
  • The essential requirements of adverse possession are hostile, actual, open, uninterrupted, notorious, exclusive and continuous possession continued for 12 years

Court orders

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  1. 1.The originating summons dated 18/9/2012 is dismissed
  2. 2.There will be no award of costs in this suit

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSections 37 and 38
  • Limitation of Actions ActSections 9, 10, 11, 12, 12(3), 13 and 32
  • Civil Procedure RulesOrder 37 rules 3D and 7
  • Constitution of Kenya2010 Constitution (re post-2010 status of adverse possession)

Cases cited (8)

  • Peter Mbiri Michuki v Samuel Mugo Michuki
    [2014] eKLR
  • Patrick Mogu Mwangi Kimunyu (also cited as Patrick Magu Mwangi Kimnyu) v Joreth Limited
    [2015] eKLR
  • Kweyu v Omutut
    [1990] KLR 707 / [1990] LRR 709
  • Gabriel Mbui v Mukindia Maranya (also cited as M'kindia Maranya)
    [1993] eKLR
  • Samuel Kazungu Kambi v Nelly Ilongo, the Returning Officer, Kilifi County & 2 Others
    [2017] eKLR
  • Muraguri Gathitho v Mathenge Thiongo
    [2009] eKLR
  • M'Mbaari M'Ithara v James Mbaka
    [2019] eKLR
  • Mtana Lewa v Kahindi Ngala Mwangadi
    [2015] eKLR
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act and Order 37 rules 3D and 7 of the Civil Procedure Rules (adverse possession claim filed in the High Court/ELC)

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 Njeri Kariuki v Joreth Limited & 3 others [2020] KEELC 2244 (KLR)", Case Analysis (2020). Nairobi ELC Originating Summons (by implication) dated 18/9/2012 re Land Parcel LR 13330/542. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2244/eng@2020-06-02

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