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ELCDismissedOriginating Summons dated 11th August, 2014, filed 26th August, 2014 (Kajiado)· [2020] KEELC 3208 (KLR)

Duncan Shumpa Ngatet & another v Stone Masters Limited [2020] KEELC 3208 (KLR)

Environment and Land Court (High Court as constituted for land claims), Kajiado
9 March 2020
COChristine Ochieng
2,517 words in judgment
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The bottom line

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The Environment and Land Court in Kajiado dismissed a family's bid to claim Kitengela land by adverse possession because they couldn't prove 12 years of continuous, open occupation.

What this practically means

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Executive summary

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The Applicants, sons of the late Ntapaiya Ole Turere, brought an Originating Summons under sections 13 and 37 of the Limitation of Actions Act seeking a declaration that they had acquired plot KAJIADO/KITENGELA/6689 (or its subdivisions) by adverse possession and an order directing the Land Registrar to register them as joint owners. The Respondent, which purchased the land from the Applicants' father in 1995/1996, opposed the claim, asserting it had charged the land to Victoria Commercial Bank in 1996, that squatters invaded in 1998, that a caution was lodged and only withdrawn in 2011, and that it conducted stone mining on the land. The Applicants testified they entered in 1998 and used the land for quarrying and grazing; PW1 conceded they did not reside there, had no licences, leases or business registration, and moved with their cattle seeking pasture. Christine Ochieng J framed two issues: adverse possession and costs. Applying Haro Yonda Juaje, Sisto Wambugu, Wines & Spirits and Wainaina v Muarai, she held a claimant must prove open, continuous, notorious and uninterrupted possession for 12 years, without permission, with the owner's knowledge, over land definitely identified, and must fulfil all the ingredients. The Applicants failed: their entry was without the Respondent's knowledge, the timing of occupation was unclear, possession was interrupted, and quarrying and grazing claims were internally contradictory. The suit was dismissed with costs to the Respondent. Judgment dated and delivered in Kajiado on 9th March, 2020.

Key legal issues

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01

Whether the Applicants acquired KAJIADO/KITENGELA/6689 by adverse possession

Holding

No; the claim failed

Reasoning

The Applicants did not prove entry in 1998 with the Respondent's knowledge, nor open, continuous and uninterrupted occupation. Their grazing claim was contradicted by their nomadic movement for pasture and by the rocky nature of the land; the quarrying claim lacked licences, leases, business registration or third-party witnesses. Possession must also be of an identified, defined portion. All ingredients had to be satisfied; missing ones were fatal.

p. 3
02

Costs of the suit

Holding

Applicants to pay the Respondent's costs

Reasoning

Costs follow the event and the Respondent, having successfully defended the suit, is the inconvenienced party.

p. 3

Legal principles established

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  • Adverse possession is governed by sections 13 and 37 of the Limitation of Actions Act, and a claimant must prove physical entry, non-permissive and continuous possession for the statutory period with the knowledge of the registered owner
  • Time for adverse possession does not start running until the registered owner becomes aware of the occupation and fails to assert rights for 12 years
  • The land adversely possessed must be definitely identified or definable
  • Failure to fulfil any one requirement of adverse possession defeats the claim

Court orders

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  1. 1.The Originating Summons is dismissed
  2. 2.The Applicants to pay the Respondent the costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsection 13
  • Limitation of Actions Actsection 37
  • Limitation of Actions Actsections 9, 10, 11 and 12 (referred to within section 13)

Cases cited (10)

  • Kenya Tea Development Authority V Jackson Githui Karanja & Another
    (2006) eKLR
  • Sisto Wambugu V Kamau Njuguna
    (1982 – 1988) 1 KAR
  • Public Trustee V K. Wanduru
    (1982 – 88) I KAR
  • Titus Kigoro Munyi V Peter Mburu Kimani
    (2015) eKLR
  • Haro Yonda Juaje V Sadaka Dzengo Mbauro & Another
    (2014) eKLR
  • Littledale v Liverpool College
    [1900] 1 CH 19, 21
  • Leigh v Jack
    [1879] 5 Ex D 264, 272
  • Wines & Spirits Kenya Limited & another v George Mwachiru Mwango
    [2018] eKLR
  • Kimani Ruchine & Another vs. Swift Rutherford & Co. Ltd
    (1980)
  • Wainaina vs. Muarai & others
    (1976) KLR 227
Jurisdiction invoked
Section 37 of the Limitation of Actions Act - application to the High Court for an order that a person entitled by adverse possession be registered as proprietor

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, "Duncan Shumpa Ngatet & another v Stone Masters Limited [2020] KEELC 3208 (KLR)", Case Analysis (2020). Originating Summons dated 11th August, 2014, filed 26th August, 2014 (Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3208/eng@2020-03-09

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