Saraphine Mbae Rithaa v Faustino Kangori M’Nairobi [2020] KEELC 2893 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved entitlement to one acre of MUTHAMBI/KANDUNGU/445 by adverse possession.
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.
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.
What portion, if any, the plaintiff could have been entitled to had the adverse possession claim succeeded.
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.
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.
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.The plaintiff's suit is dismissed.
- 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.