Joyce Njeri Kariuki v Joreth Limited & 3 others [2020] KEELC 2244 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the estate acquired title by adverse possession
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
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.
Effect of the death of an adverse possessor on the limitation period
Time stops running at death and resumes only when a personal representative is appointed and continues the adverse possession activities
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.
Whether the filing of Nairobi HCCC No 6206/1992 interrupted adverse possession
The court did not find it necessary to decide this question definitively, as the claim failed on the 12-year requirement
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.
Legal principles established
#- 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
#- 1.The originating summons dated 18/9/2012 is dismissed
- 2.There will be no award of costs in this suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.