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ELCAllowedOriginating Summons dated 31st December, 2014 (amended 21st September, 2018)· [2020] KEELC 2795 (KLR)

Christopher Mwangi Munuhe v Geoffrey Nasubo [2020] KEELC 2795 (KLR)

Environment and Land Court
8 May 2020
OAO.A. Angote
1,173 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that occupying someone's land openly and continuously for over twelve years can make you its legal owner.

What this practically means

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Executive summary

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The Plaintiff, through her Personal Representative, brought an amended Originating Summons dated 31st December 2014 seeking a declaration that she had been in open, continuous and uninterrupted occupation of L.R. No. 20604/52 for over twelve years and had thereby acquired title by adverse possession. She deponed that she was allocated the land by Akwana Housing Co-operative Society Limited on 12th November 2000, after which she fenced it, cultivated it, built a septic tank, toilet and site office, obtained an approved building plan from Mavoko Municipal Council in 2003, connected piped water and electricity, and paid rates and rent. The land had been registered in the Defendant's name in July 1997. The Defendant first appeared on the land in 2002, was told by the caretaker who occupied it, but never took steps to evict the Plaintiff nor entered appearance despite service by newspaper advertisement, so the suit proceeded undefended. Applying section 38(1) of the Limitation of Actions Act, the court found the twelve-year period of continuous, peaceful occupation without the registered proprietor's permission proved on a balance of probabilities. The court allowed the Originating Summons, declared that the Plaintiff had acquired the whole of L.R. No. 20604/52 by adverse possession, directed the Chief Land Registrar/Registrar of Titles to register the Plaintiff and issue a Certificate of Title, and issued a permanent injunction restraining the Defendant from interfering with the property. Each party was ordered to bear their own costs.

Key legal issues

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01

Whether the Plaintiff acquired title to L.R. No. 20604/52 by adverse possession

Holding

Yes. The Plaintiff occupied the land from 2000, developed it with approved building plans, water and electricity, and the Defendant never dispossessed her, so the twelve-year period ran and the Plaintiff is entitled to be registered as proprietor.

Reasoning

The land was registered in the Defendant's name in 1997, but the Plaintiff was allocated it by Akwana Housing Co-operative Society in November 2000 and took possession, fenced it, built with an approved plan, connected piped water and electricity, and paid rates. The Defendant first appeared in 2002 but never sought eviction. The uncontroverted evidence showed open, continuous and peaceful occupation for over twelve years without the registered proprietor's consent, satisfying section 38(1) of the Limitation of Actions Act on a balance of probabilities.

p. 2

Legal principles established

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  • A claimant who has been on registered land continuously, peacefully and openly for twelve years without the proprietor's permission acquires title by adverse possession and may be registered as proprietor under section 38(1) of the Limitation of Actions Act.

Court orders

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  1. 1.An order that the Plaintiff has acquired by way of adverse possession the whole of L.R. No. 20604/52 situate at Mavoko Municipality
  2. 2.An order directing the Chief Land Registrar or the Registrar of Titles to register the Plaintiff as the owner of L.R. No. 20604/52 and issue to the Plaintiff a Certificate of Title
  3. 3.An order of permanent injunction restraining the Defendant, his servants or agents from entering, working, trespassing or interfering with the suit property in any manner whatsoever
  4. 4.Each party to pay his/her own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act

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, "Christopher Mwangi Munuhe v Geoffrey Nasubo [2020] KEELC 2795 (KLR)", Case Analysis (2020). Originating Summons dated 31st December, 2014 (amended 21st September, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2795/eng@2020-05-08

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