Damaris Wanjiru Mungai & another v Mucua Igogo & 3 others [2020] KEELC 2620 (KLR)
The bottom line
#A Nairobi court dismissed an adverse possession claim because the claimants sued the wrong people, left the land for years, and missed a mandatory paperwork requirement.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs established adverse possession of the suit property
The claim failed because occupation was interrupted (the 1st plaintiff left in 2005, returned in 2010, and the Land Registrar proceedings removing her caution constituted an interruption), was not peaceful, and she had earlier claimed purchaser's interest
The court found the plaintiffs' occupation was neither continuous nor peaceful. The 1st plaintiff did not challenge evidence that she left the land in 2005 and returned in 2010. The Land Registrar proceedings, which ended with removal of her caution in 2005, amounted to an interruption. Having initially asserted purchaser's interest, she could not switch to adverse possession. No certified extract of title was annexed as required.
Whether the claim could lie against the defendants who are not the registered owners
No - the claim should have been brought against the registered owner, Robinson Igogo Hinga (deceased), and no evidence showed the defendants were administrators of his estate; no succession proceedings had been instituted
The registered proprietor was Robinson Igogo Hinga, who died in 1992. The defendants were not shown to be registered owners or administrators of his estate, and their beneficial rights had not accrued since no succession cause had been filed. A claim for adverse possession must be adverse to the registered owner, so a claim against the defendants was misconceived.
Whether failure to annex a certified extract of title was fatal
Yes - annexing a certified extract of title is mandatory under Order 37 rule 7 of the Civil Procedure Rules and the plaintiffs failed to do so
Order 37 rule 7 requires an application under section 38 of the Limitation of Actions Act to be made by originating summons supported by an affidavit to which a certified extract of the title is annexed. The plaintiffs produced only an extract of the green card (exhibit P2) but not a certified extract of title in the name of the registered owner, which the court held to be a mandatory requirement whose breach was fatal to the claim.
Legal principles established
#- To succeed in a claim for adverse possession a claimant must prove uninterrupted occupation of at least twelve years, with the knowledge of the defendant, and must exhibit a certified extract of title of the registered owner
- An adverse possession claim must be made against the registered owner of the land, not against third parties who are not registered owners or administrators of the estate
- A certified extract of title annexed to the originating summons is a mandatory requirement under Order 37 rule 7 of the Civil Procedure Rules
- A claimant who earlier asserted purchaser's interest cannot later claim the same land by adverse possession, and proceedings before the Land Registrar constitute an interruption of possession
Court orders
#- 1.The plaintiffs' originating summons is dismissed with costs to the defendants
- Jurisdiction invoked
- Order 37 rule 7 of the Civil Procedure Rules read with section 38 of the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Damaris Wanjiru Mungai & another v Mucua Igogo & 3 others [2020] KEELC 2620 (KLR)", Case Analysis (2020). ELC NO. 346 OF 2011 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2620/eng@2020-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.