Jedidah Wanjiku Kangethe v Lenkai Ole Lenkaikoni & 2 Others [2020] KEELC 3196 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant acquired the five acres by adverse possession
Yes. The Applicant purchased the five acres in 1989, took possession on demarcation, and was in open, continuous and uninterrupted occupation well beyond the statutory 12 years, which matured in 2001. The Respondents failed to attend court to controvert her testimony, and their own advocate's letter and the Assistant County Commissioner's notice corroborated the sale and her occupation. Her rights as purchaser in possession bound the land.
The court applied section 13 of the Limitation of Actions Act and the ingredients of adverse possession in Haro Yonda Juaje v Sadaka Dzengo Mbauro, as summarised through Sisto Wambugu v Kamau Njuguna. Relying on Public Trustee v Wanduru and Peter Mbiri Michuki v Samuel Mugo Michuki, it held time runs from payment of the purchase price where the purchaser takes possession. The Applicant entered in 1989, paid over Kshs.100,000 (final payment 1997), demarcated and cultivated the land with a caretaker. The Respondents' absence meant her evidence was uncontroverted, and their fraudulent succession grant undermined their credibility. Possession was continuous despite the 2017 eviction attempt, which came after the claim had matured.
Who should bear the costs of the suit
The Applicant, as the prevailing and inconvenienced party, was awarded the costs of the suit.
The court reasoned that costs generally follow the outcome of a suit. Having succeeded in establishing title by adverse possession and having had her quiet enjoyment attacked by the Respondents' eviction efforts, she was treated as the inconvenienced party and entitled to costs.
Legal principles established
#- Adverse possession should be calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser takes possession, because from that date the true owner is dispossessed
- A purchaser in possession after paying the purchase price is a person in whose favour the limitation period can run
- The registered proprietor whose title has been overtaken by adverse possession holds the land in trust for the adverse possessor
Court orders
#- 1.The Applicant declared to have become the legal owner entitled by adverse possession of over twelve (12) years since 1989 of five (5) acres comprised in Title Number LR No. LTK/ROMBO/'B'/2 situated in Loitokitok currently in the Applicant's possession
- 2.The Respondents' Counterclaim dated 22nd August, 2017 dismissed
- 3.The Respondents directed to subdivide and effect transfer of a five (5) acre portion of land out of LR No. LTK/ROMBO/'B'/2 currently in the Applicant's possession pursuant to the Certificate of Confirmation of Grant issued in High Court Succession Cause No. 1185/1988 within 60 days, failing which the Deputy Registrar of the Environment & Land Court to sign all relevant subdivision and transfer documents
- 4.A permanent injunction issued restraining the Respondents from evicting, interfering with, encroaching and/or dealing with any part of the five (5) acre portion occupied by the Applicant
- 5.Costs of the suit awarded to the Applicant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) read with the Limitation of Actions Act (Cap 22) - the court entertained an Originating Summons claiming title by adverse possession under sections 13 and 37 of that Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jedidah Wanjiku Kangethe v Lenkai Ole Lenkaikoni & 2 Others [2020] KEELC 3196 (KLR)", Case Analysis (2020). ELC Case No. 789 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3196/eng@2020-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.