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ELCPartially AllowedOriginating Summons dated 13th July 2011· [2020] KEELC 2690 (KLR)

Rose Waruinu Muthemba v Rosalyna Dola Ouko & 2 others [2020] KEELC 2690 (KLR)

Environment and Land Court
5 May 2020
SOS. Okong'o
4,153 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Nairobi widow won land her late husband occupied since 1979, proving 12+ years of open, uninterrupted possession gives ownership in Kenya.

What this practically means

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Executive summary

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The plaintiff, widow and administrator of the estate of Louis Juguna Muthemba (deceased), brought an Originating Summons seeking a declaration of title by adverse possession over Plot No. 44, a 5-acre portion of L.R No. 3589/6, Langata, Nairobi, together with a vesting order. Her case was that the deceased purchased the plot in 1979 from Rodah Katheke Gicogo at Kshs. 120,000/=, took vacant possession, fenced it, installed a gate, erected structures occupied by caretakers, and planted trees; on his death in 1985 the plaintiff continued possession. The defendants, administrators of the estate of the registered owner Jason Atinda Ouko (deceased), denied that the land had been subdivided, contended the claimed plot was undefined and non-existent, that occupation was permissive, and that the plaintiff never had exclusive use. The court applied the ten elements of adverse possession set out in Gabriel Mbui v Mukindia Maranya and found that the deceased entered in 1979 under an honest belief in a valid title, occupied openly, exclusively, continuously and non-permissively for well over the statutory 12 years, and that the plaintiff continued that possession as administrator. The court rejected the defendants' permission defence as contrary to their own pleadings and evidence, holding they could not approbate and reprobate. Judgment was entered for the plaintiff: title by adverse possession declared, transfer ordered after subdivision of L.R No. 3589/6, with the Deputy Registrar empowered to sign transfer documents on default, the plaintiff bearing statutory transfer charges and receiving the costs of the suit.

Key legal issues

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01

Whether the elements of adverse possession were proved

Holding

The court held that the deceased took possession in 1979, fenced the land, installed a gate, put up structures and planted trees; possession was actual, exclusive, non-permissive, open and continuous for over 12 years before suit was filed in 2011.

Reasoning

Applying the ten elements in Gabriel Mbui v Mukindia Maranya, the court found physical entry in 1979, occupation under colour of right from the purchase from Rodah, non-permissive use since the registered owner disowned the transaction, exclusivity evidenced by the fence, gate, structures and caretakers, and continuity from 1979 until suit. The registered owner knew of the occupation and activities inconsistent with his interest, so limitation ran against him.

p. 4
02

Whether entry was permissive, defeating adverse possession

Holding

The court found the entry and occupation was without the permission of the registered owner; the defendants' contention of permission contradicted their own pleadings and evidence.

Reasoning

The defendants pleaded that Atinda was never privy to the sale and that he never abandoned the land, yet in submissions they claimed the deceased entered with Atinda's permission. The court treated this as approbating and reprobating and found no evidence of permission; the defendants' 2010 letter showed they were unaware of the plaintiff's interest.

p. 4
03

Whether the suit property was un-delineated and non-existent

Holding

The court rejected the contention, finding the property was delineated with boundaries marked by a fence and measured 5 acres.

Reasoning

The evidence showed the deceased purchased the property after it was delineated and its boundaries marked. Photographs produced by both parties showed clear boundary fencing. Occupation of 5 acres was established, and partial development did not defeat the claim over the portion under effective control and use.

p. 4
04

Whether the plaintiff departed from her pleadings by relying on the sale agreement

Holding

The court held the claim was based on adverse possession, and the agreement for sale merely explained how the deceased entered and occupied the property.

Reasoning

The Originating Summons and reliefs sought showed the claim was in adverse possession. The 1979 agreement was relied on to establish entry, colour of right and duration of occupation, not as a contractual claim against Atinda, who was not a party to it and therefore could not be bound by it.

p. 3

Legal principles established

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  • A claim founded on adverse possession is assessed against the established elements including actual, exclusive, non-permissive, open, continuous possession for the statutory period over identifiable land.
  • A party cannot approbate and reprobate at the same time.
  • Partial development of land does not defeat a claim where the undeveloped portion is in the claimant's effective control and use.

Court orders

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  1. 1.Declared that the plaintiff has acquired title to Plot No. 44 being a portion of L.R No. 3589/6, Langata Nairobi by adverse possession
  2. 2.Ordered the defendants to transfer the said parcel of land to the plaintiff after the subdivision of L.R No. 3589/6
  3. 3.In default of the defendants' transfer, authorised the Deputy Registrar of the Court to sign all documents necessary for the effective transfer of the property to the plaintiff
  4. 4.Ordered the plaintiff to meet the statutory costs and other charges associated with the transfer
  5. 5.Awarded the plaintiff the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Limitation of Actions Act (referred to as the statute of limitation)statutory period of 12 years

Cases cited (1)

  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
Jurisdiction invoked
Original civil jurisdiction over land claims by way of Originating Summons in adverse possession (Order 37 procedure; claim brought under the law governing adverse possession)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rose Waruinu Muthemba v Rosalyna Dola Ouko & 2 others [2020] KEELC 2690 (KLR)", Case Analysis (2020). Originating Summons dated 13th July 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2690/eng@2020-05-05

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