Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedOriginating Summons dated 13th May 2019 (court number not stated in the judgment)· [2020] KEELC 2893 (KLR)

Saraphine Mbae Rithaa v Faustino Kangori M’Nairobi [2020] KEELC 2893 (KLR)

Environment and Land Court
5 May 2020
9,871 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiff, Saraphine Mbae Rithaa, filed an Originating Summons dated 13th May 2019 under section 28(h) of the Land Registration Act, Order 37 rule 7 of the Civil Procedure Rules and sections 7, 17, 18, 37 and 38 of the Limitation of Actions Act, seeking declarations that he had acquired one acre of land parcel MUTHAMBI/KANDUNGU/445 (registered in the defendant's name) by adverse possession since 1998, alternatively that the defendant held that portion in trust for him, together with orders for excision, registration and transfer. His case was that he bought the one acre in September 1998 from the defendant's father, M'Nairobi Kathiri, following a DLASO decision in Objection No. 67 of 1995. The defendant, Fausto Kangori M'Nairobi, testified that the one acre sold to the plaintiff was in fact parcel 1475, located at Gaanji about three kilometres away; that the plaintiff was forced off the suit land after uprooting of crops, a criminal prosecution ending in acquittal in 2000, and returned only in January 2009 occupying about 0.25 acres; and that time ran from registration on 27th August 2008, so the claim was premature. The court framed a single issue: whether the plaintiff proved entitlement to the one acre through adverse possession. It held that adverse possession is sui generis, that time cannot run during adjudication and starts on registration (27th August 2008), and that the defendant's suit, Chuka PMCC No. 5 of 2015, dismissed for lack of prosecution on 13th December 2016, interrupted the plaintiff's occupation, so 12 years of peaceful, open and uninterrupted occupation had not accrued when the OS was filed. In the alternative, the court found the plaintiff could at most claim a quarter acre, the defendant's reclamation of three quarters of an acre being uncontroverted. The suit was dismissed with costs to the defendant.

Key legal issues

#
01

Whether the plaintiff proved entitlement to one acre of MUTHAMBI/KANDUNGU/445 by adverse possession.

Holding

The suit was dismissed. Adverse possession could not run during the adjudication period, so time started on the defendant's registration on 27th August 2008; however, the defendant's suit Chuka PMCC No. 5 of 2015 (dismissed for lack of prosecution on 13th December 2016) interrupted the possession, so less than 12 years of continuous peaceful occupation had accrued when the OS was filed on 13th May 2019.

Reasoning

The court held that adverse possession is sui generis and its ingredients must all be proved because a successful claim disinherits a registered proprietor. Time cannot run during adjudication; it starts when the owner becomes registered, which was 27th August 2008. The defendant's suit of 2015 interfered with the plaintiff's occupation, and when the OS was filed less than 3 years had elapsed since that suit's dismissal, so 12 years of peaceful, open and uninterrupted occupation was not proved.

p. 12
02

What portion, if any, the plaintiff could have been entitled to had the adverse possession claim succeeded.

Holding

Even on the assumption the claim succeeded, only a quarter of an acre would have been available because the defendant's evidence that he reclaimed three quarters of an acre after the plaintiff vacated was not controverted.

Reasoning

The defendant testified that after the criminal case ended in 2000 the plaintiff moved out to his own parcel 1475 and only returned in January 2009, occupying about 0.25 acres. The court found the defendant's assertion that he had reclaimed three quarters of an acre uncontroverted by any evidence, so even a successful claimant would only have been entitled to a quarter acre.

p. 12

Legal principles established

#
  • Adverse possession is a sui generis process whose ingredients, including quiet, open and uninterrupted occupation for at least 12 years, must all be proved, because a successful claim disinherits a registered proprietor.
  • Time under the doctrine of adverse possession cannot run during a land adjudication process; it begins to run only when the claimant's opponent becomes the registered owner of the land.
  • The filing of a suit by the registered owner against the adverse possessor interrupts the peaceful and uninterrupted occupation required for adverse possession, restarting the limitation period.

Court orders

#
  1. 1.The plaintiff's suit is dismissed.
  2. 2.Costs to the defendant.
Jurisdiction invoked
Not expressly stated in the judgment; the Originating Summons was brought under section 28(h) of the Land Registration Act No. 3 of 2012, Order 37 rule 7 of the Civil Procedure Rules and sections 7, 17, 18, 37 and 38 of the Limitation of Actions Act (Cap 22).

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Saraphine Mbae Rithaa v Faustino Kangori M’Nairobi [2020] KEELC 2893 (KLR)", Case Analysis (2020). Originating Summons dated 13th May 2019 (court number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2893/eng@2020-05-05

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