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ELCPartially AllowedOriginating Summons dated 23rd June 2016· [2020] KEELC 2463 (KLR)

Simon Mutua Kihiro (suing as the administrator of the Estate of Joseph Wanyoro (Deceased) v Joseph Mbugua Wairimu & another [2020] KEELC 2463 (KLR)

Environment and Land Court
14 May 2020
3,813 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a family land ownership after 56 years of open occupation, ruling that a later sale could not override their accrued adverse possession rights.

What this practically means

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Executive summary

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By Originating Summons dated 23rd June 2016, the Plaintiff, administrator of the estate of the late Joseph Wanyoro Gitau, sought declarations that his father's estate had acquired land parcel Chania/Makwa/T.311 by adverse possession, an order registering him as proprietor in place of the 1st Defendant, an order compelling transfer, and alternatively a declaration of trust. He averred his father bought the land from Kanyi Njuguna (father of the 2nd Defendant) in 1958, took possession, and the family remained in occupation; the 2nd Defendant later transmitted the land to herself and sold it to the 1st Defendant in 2016. Both Defendants denied the sale, contended there was no written agreement, and argued the claim was extinguished by the transmission and sale. The court framed two issues: whether adverse possession was proved, and costs. Relying on section 38 of the Limitation of Actions Act and authorities including Wambugu v Njuguna, Samwel Nyakenogo and Jacob Mwanto Wangora, the court found the Plaintiff's family had been in continuous, open, uninterrupted possession since 1958 with the Defendants' knowledge, which DW2 herself corroborated, and that the subsequent transmission and sale could not defeat accrued adverse possession rights. The absence of a written sale agreement was immaterial as the claim rested on possession, not contract. The Originating Summons was allowed in terms of prayers 1, 2 and 3, with the alternative trust prayer not granted, and costs awarded to the Plaintiff. Judgment was delivered online pursuant to COVID-19 directions.

Key legal issues

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01

Whether the Plaintiff proved continuous, open and uninterrupted adverse possession of Chania/Makwa/T.311

Holding

Yes. The Plaintiff's family took possession in 1958 through PW2 and remained in occupation with the knowledge of the registered owner's family until 2014, which possession was adverse to the owners' rights

Reasoning

PW1, PW2 and PW3 gave consistent evidence that the land was purchased in 1958 and PW2 placed in occupation. DW2 herself confirmed the Wanyoro family's occupation since 1958 and that only in 2014 did she ask PW2 to move out. The court found it implausible that a 56-year occupation was mere permissive use and held the possession continuous, open, uninterrupted and known to the Defendants, hence adverse.

p. 3
02

Whether the 2016 transmission to the 2nd Defendant and sale to the 1st Defendant defeated the adverse possession claim

Holding

No. The limitation period had already begun to run against the original registered owner, and subsequent transfer did not extinguish the Plaintiff's accrued rights

Reasoning

Relying on Samwel Nyakenogo and Jacob Mwanto Wangora, the court held that transmission of the property to a personal representative and subsequent sale to a purchaser cannot interrupt or defeat adverse possession that had already accrued. The 12-year period need not run against the new registered owner where possession was already adverse to the former owner.

p. 4
03

Whether the absence of a written sale agreement defeated the claim

Holding

No. The claim was founded on adverse possession, not contract, so no written agreement was required

Reasoning

Although section 3(3) of the Law of Contract Act requires contracts relating to land to be in writing, an adverse possession claim rests on possession, not on the validity of the underlying sale. The lack of a sale agreement was therefore immaterial to the claim.

p. 3
04

Who should bear the costs of the suit

Holding

The Plaintiff, as the successful litigant, is entitled to costs under section 27 of the Civil Procedure Act

Reasoning

Costs follow the event. Having succeeded on the adverse possession claim, the Plaintiff was awarded costs of the Originating Summons.

p. 4

Legal principles established

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  • For adverse possession, the claimant must show continuous, uninterrupted, open, actual and exclusive possession inconsistent with and without the consent of the true owner for the limitation period
  • A transfer or transmission of registered land to a new proprietor does not extinguish accrued rights of adverse possession; such transfer cannot defeat a claim under section 38(1) of the Limitation of Actions Act
  • An adverse possession claim does not require a written sale agreement notwithstanding section 3(3) of the Law of Contract Act

Court orders

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  1. 1.A declaration that the Plaintiff has acquired title to the whole of parcel of land No. Chania/Makwa/T.311 by way of Adverse Possession
  2. 2.An order that the Plaintiff be registered as proprietor of land parcel No. Chania/Makwa/T.311 in place of the 1st Defendant
  3. 3.An order directing the 1st Defendant to execute transfer of the said parcel of land No. Chania/Makwa/T.311 in favour of the Plaintiff
  4. 4.Costs of the Originating Summons awarded to the Plaintiff

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1) and (2)
  • Law of Contract ActSection 3(3)
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (5)

  • Wambugu …Vs… Njuguna
    (1983) KLR 172
  • Littledale…Vs… Liverpool College
    (1990) I Ch. 19
  • Leigh v Jack
  • Samwel Nyakenogo …Vs… Samwel Orucho Onyaru
    [2010] eKLR
  • Jacob Mwanto Wangora…Vs… Mary Waruga Wokabi & 3 others
    [2018] eKLR
Jurisdiction invoked
Section 38(1) and (2) of the Limitation of Actions Act - application for an order that the applicant be registered as proprietor of land by 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, "Simon Mutua Kihiro (suing as the administrator of the Estate of Joseph Wanyoro (Deceased) v Joseph Mbugua Wairimu & another [2020] KEELC 2463 (KLR)", Case Analysis (2020). Originating Summons dated 23rd June 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2463/eng@2020-05-14

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