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ELCDismissedELC Case (Originating Summons, later converted to plaint) – Murang'a· [2020] KEELC 2270 (KLR)

Roman Nyoike Mugacia & 4 others v Makindi Banks Limited [2020] KEELC 2270 (KLR)

Environment and Land Court
3 June 2020
10,348 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Murang'a dismissed a family's claim to own a neighbour's land strip because occasional farming is not the same as continuous, exclusive occupation.

What this practically means

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Executive summary

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Five Plaintiffs, registered proprietors of land parcels in Nguthuru Village, Kandara Sub-County, sued Makindi Banks Limited, the registered owner of LR No. 5991, seeking declarations that they had acquired title by adverse possession to a 100-metre strip of the Defendant's land running from the Makindi River bed to the Defendant's beacons, an order compelling transfer of the portions, and costs. They asserted that they had occupied and used the strip since time immemorial, believing the river to be the boundary, and relied on a 1985 boundary dispute in which surveyors reportedly found the settler farms' beacons jumped across the river. The Defendant, which acquired the land in 1995, denied occupation, asserting the Plaintiffs invaded the land only in December 2016, that the strip was a flood-prone wetland it had not developed, and that its 2014 re-establishment of beacons interrupted any possession. The court framed three issues: possession and occupation, adversity of possession, and costs. It held that the Plaintiffs proved neither possession with animus possidendi nor exclusivity: their use (drawing water, seasonal cultivation of vegetables and Napier grass, one pump house) was permissive, intermittent and shared with third parties; cultivation began only in 2016 per the photographic evidence; the 1985 dispute did not involve the Plaintiffs' parcels; the claim was imprecise as to acreage; and the encroachment limb was a mis-pleaded boundary dispute on which adverse possession cannot lie. The suit was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the Plaintiffs proved possession and occupation of the disputed 100-metre strip

Holding

No. The Plaintiffs were registered owners of their own parcels from 1967–2008, did not fence or build on the disputed land (save one pump house), other third parties also cultivated it, and photographs showed cultivation only began in 2016.

Reasoning

The court compared December 2016 photographs showing overgrowth with 2017 photographs showing pronounced cultivation, consistent with occupation starting in 2016. No evidence established occupation since 1995 or earlier. Possession must be exclusive and with animus possidendi; use of the land for drawing water and seasonal cultivation is permissive/harmless user inconsistent with the owner's enjoyment, not ouster.

p. 8
02

Whether the possession was adverse to the Defendant's title

Holding

No. The alleged possession was seasonal and interrupted, the Defendant asserted its rights by re-establishing beacons in 2014, and the Defendant's non-use was due to the land being a flood-prone wetland, not discontinuance of possession.

Reasoning

Relying on Mbui v Mukindia Maranya and Kazungu Mateja Mbaru v Thathini Co. Ltd, the court held that acts of user not inconsistent with the owner's intended purpose do not amount to adverse possession, and an owner leaving land idle does not discontinue possession. The 2014 beacon exercise was an effective assertion of rights. Seasonal cultivation abandoned during floods fails the continuity requirement.

p. 9
03

Whether the Plaintiffs' claim that the Defendant's land encroached 100 metres onto their parcels could support relief

Holding

No. If true, the 100 metres would be part of the Plaintiffs' land, on which adverse possession cannot be founded; the encroachment limb was a mis-pleaded boundary dispute and was disregarded.

Reasoning

The court found the deed plan of LR 5991 dated 1929 fixed the boundary along the yellow line, with measurements from the river bed varying (not uniformly 100 metres). Cadastral maps show general boundaries and are not authorities on boundary. The claim was not pleaded to its logical conclusion and merely confused the issues.

p. 5
04

Whether the 1985 boundary dispute findings and the 12/10/14 resolution aided the Plaintiffs' claim

Holding

No. The 1985 dispute concerned parcels LOC4/NGUTHURU/22-352, which are not the Plaintiffs' parcels, and none of the Plaintiffs were complainants or became registered owners by then.

Reasoning

Perusal of PEX 6 showed parcels 22-352 are not opposite the Defendant's land, and the green cards showed the Plaintiffs' titles were original or subdivisions of parcel 19, outside the disputed range. The Plaintiffs did not call the two farmers who lodged the 1985 complaint, and the Defendant denied the 2014 resolution related to this suit.

p. 6
05

Whether the claim was sufficiently definite as to the land claimed

Holding

No. Measurements from the river bed to the boundary vary between roughly 51 and 300 metres, so the pleaded '100 metres' claim was imprecise.

Reasoning

The deed plan annexed to the title showed varying measurements, agreeing with the Land Surveyor's report of 11/11/2017. Since the acreage claimed was uncertain, the claim lacked the certainty required; a claimant must prove a definite and identifiable portion.

p. 9

Legal principles established

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  • A claimant cannot claim adverse possession over land which he claims to own; if the land is part of his parcel, adverse possession does not lie.
  • Adverse possession requires exclusive possession with a clear animus possidendi; permissive or shared use does not found the claim.
  • The land claimed must be definite and identifiable; the acreage must be specifically ascertained.
  • Possession must be continuous and unbroken; seasonal or intermittent occupation does not satisfy the continuity requirement.
  • A property owner should be deprived of title only in the clearest of cases; evidence must be stringent.

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.Costs of the suit awarded to the Defendant

Authorities

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Legislation

  • Limitation of Actions ActCap 22, section 7
  • Limitation of Actions ActCap 22, section 13

Cases cited (26)

  • Wambugu Vs Njuguna
    (1983) KLR 173 (also cited as (1983) KLR 171)
  • Mbira Vs Gachuhi
    (2002) 1 EALR 137
  • Mtana Lewa Vs Kahindi Ngala Mwangandi
    (2005) EKLR
  • Joseph Gachuhi Kiritu Vs Lawrence Munyambu Kabura
    (1996) EKLR
  • Leonola Nerima Karani v William Wanyama Ndege
    [2012] EKLR
  • Francis Gicheru Karini vs Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (NRB) UR
  • Kimani Ruchine vs Swift Rutherford & Co. Ltd
    (1980) KLR 10
  • Jonathan O. Oyalo Obala & Ano. - Vs- Cornelius Otaya Okumu
    Kisumu Civil Appeal No. 208 of 1997 (unreported)
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
  • Kweyu vs Omutut
    [1990] KLR 709
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Gerishon Muindi Baruthi -Vs.- Willays Gatinku Mukobwa & another
    CA No. 98 of 1998
  • Kazungu Mateja Mbaru & 5 Others -Vs- Thathini Co.Ltd
    Misc. Application No. 503 of 2005
  • Wanyoike Gathure v/s Berverly
    (1965) EA 514
  • Peter Njau Kairu v. Stephen Ndung'u Njenga & Another
    C.A. 57 of 1997
  • Littledale v Liverpool College
    [1900] 1 Ch 19
  • Leigh v Jack
    [1879] 5 Ex D 264
  • Williams Brothers Direct Supply Stores Ltd –Vs- Raftery
    [1957] 3 All ER 593
  • Hayward and another –VS- Chaloner
    [1967] 3 WLR 10
  • Hassanali Mamuji v Alibhai Ebrahimji Dar & Sons
    (1935) 12 EACA 11
  • Athman Bwana and another v Haji Abdulla Ibrahim and another
    (1948) 15 EACA 7
  • Karanja Matheri v Kahnji
    [1976] Kenya LR 140
  • Wainaina v Murai and others
    [1976] Kenya LR 227
  • Gatimu Kinguru v Muya Gathangi
    (1976) Kenya LR 253
  • Sisto Wambugu v Kamau Njuguna
    [1982-88] 1 KAR 217
  • Public Trustee and Beatrice Muthoni v Kamau Wanduru
    Court of Appeal at Nairobi Civil Appeal No 73 of 1982
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court in a claim for title to land by adverse possession under section 7 of the Limitation of Actions Act (Cap 22)

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, "Roman Nyoike Mugacia & 4 others v Makindi Banks Limited [2020] KEELC 2270 (KLR)", Case Analysis (2020). ELC Case (Originating Summons, later converted to plaint) – Murang'a. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2270/eng@2020-06-03

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