Michael Gathu Macharia & another v John Thige Maina & 2 others [2020] KEELC 2675 (KLR)
The bottom line
#A Kenyan court declared that a land buyer who lived on his purchased acre for 12 years owns it outright, even though the seller's family was registered later.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Plaintiff's occupation was permissive or adverse
Although entry was under a sale agreement, the purchaser's occupation was adverse to the sellers' title because the purchaser's interest was acquisition of the property while the seller's interest was recovery of the purchase price
The court reasoned that a purchaser who has paid consideration holds a personal interest in the land adverse to the seller's interest in the purchase price; permission to occupy merely recognises that change of interest. The title was held in trust for the purchaser pursuant to a purchaser's right, so time ran against the registered proprietor.
Commencement date of the limitation period
Time began to run from 2005 when the purchase price was fully paid, so adverse possession accrued in 2017
Relying on The Public Trustee v Wanduru, the court held limitation runs from payment of the purchase price. The court found the price was paid by 2005, and the Kshs 10,000/- paid in 2011 was for subdivision expenses, not purchase price, so the 2011 payment did not reset the clock.
Effect of subsequent registration of the Defendants in 2018
The Defendants took a title already extinguished and encumbered by the accrued adverse possession; they held in trust for the 1st Plaintiff
Since adverse possession had vested in 2017, before the Defendants were registered on 15/3/2018, the transmission of title did not interrupt possession. The Defendants acquired a title encumbered with an overriding interest of adverse possession under the Land Registration Act.
Alternative claim for compensation at market value
Not determined; would have been dismissed for lack of evidence
The Plaintiff did not present a valuation report or any evidence to guide the court on market value, and since the primary claim succeeded the court saw no reason to determine the alternative claim.
Legal principles established
#- Adverse possession should be calculated from the date of payment of the purchase price where a purchaser takes possession
- A purchaser in possession under a sale is in adverse possession, since his interest is adverse to the seller's interest in recovering the purchase price
- A change of registered ownership of land occupied by a person in adverse possession does not interrupt that adverse possession
Court orders
#- 1.A declaration that the Plaintiffs have acquired 1 acre out of LOC 13/KARUNGE/2954 by way of adverse possession
- 2.The Defendants to subdivide the suit land and transfer 1 acre to the 1st Plaintiff forthwith
- 3.Each party to meet the costs of the subdivision and all other incidentals for their portions
- 4.In default, the Deputy Registrar to execute all documents necessary to effect the orders
- 5.Suspension/stay of execution for 60 days from the date of judgment pursuant to COVID-19 practice directions (Kenya Gazette Notice No. 3137 of 17/4/2020)
- 6.Costs of the suit in favour of the Plaintiffs
- Jurisdiction invoked
- Original jurisdiction under sections 7, 13 and 38 of the Limitation of Actions Act, Cap 22 (adverse possession claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Gathu Macharia & another v John Thige Maina & 2 others [2020] KEELC 2675 (KLR)", Case Analysis (2020). Originating Summons dated 23/7/2018 (LOC13/KARUNGE/2954). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2675/eng@2020-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.