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ELCAllowed· [2020] KEELC 3393 (KLR)

Jane Njeri Mwangi (suing as the administrator of the estate of James Mwangi Muchachi) v Jane Waruini Githonge [2020] KEELC 3393 (KLR)

Environment and Land Court of Kenya
27 February 2020
1,052 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff took out an Originating Summons seeking a declaration that she had acquired title by adverse possession to 0.2 acres out of land parcel LOC8/GATUYA/885, an order compelling the Defendant to execute transfer documents (with the Deputy Registrar to execute in default), and costs. She claimed her late husband purchased the portion in 1993, paid the full purchase price and took possession, and that the family remained in open, continuous and uninterrupted occupation. The Defendant, registered as owner of the whole parcel in 2011 by gift, admitted the purchase of a neighbouring parcel and that the Plaintiff had been cultivating 0.2 acres, but said she attempted to stop the occupation through local administrators. The court applied Kasuve v Mwaani Investments on the elements of adverse possession and Wanyoike v Kahiri on the commencement of time in a purchase scenario, holding that time ran from 1993 so that adverse possession accrued in 2005. Relying on Jandu v Kirpal, Wainaina v Murai and Kiritu v Kabura, the court found that the Defendant had knowledge of the occupation and that summoning the Plaintiff to local administrators did not stop time; none of the three events stopping time (dispossession, retaking of possession, or suit to assert title) occurred. The court found the Plaintiff's possession open, peaceful and continuous for 21 years, held the gift was encumbered with a trust in favour of the adverse possessor, allowed the suit, entered judgment for the Plaintiff and awarded her costs. Delivered at Murang'a on 27 February 2020 by J. G. Kemei J.

Key legal issues

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01

Whether the Plaintiff acquired title by adverse possession

Holding

Yes - her possession was open, peaceful and continuous for 21 years, exceeding the 12-year limitation period

Reasoning

The Plaintiff's husband purchased the land in 1993, paid the full purchase price and took possession. Time therefore began to run in 1993 and adverse possession accrued in 2005. The Defendant, registered in 2011 by gift, took the land subject to the encumbrance. Summoning the Plaintiff to the local administrator's office did not stop time; no legal proceedings or effective entry were made. The Plaintiff's 21 years of open, peaceful and continuous possession extinguished the paper owner's title on a balance of probability.

p. 2
02

Whether the Defendant's alleged interventions stopped time from running

Holding

No - summons before local administrators do not constitute assertion of title

Reasoning

The Defendant contended she tried to stop the Plaintiff's occupation through local administrators. Citing Kiritu v Kabura, the court held that time stops only when the owner asserts his right by taking legal proceedings or making effective entry, or when the adverse possessor admits the right. The Defendant led no evidence of dispossession or that the Plaintiff relinquished possession. None of the three instances stopping time arose.

p. 2
03

Knowledge of the paper owner of the adverse occupation

Holding

The Defendant admitted knowledge of the Plaintiff's occupation

Reasoning

Citing Jandu v Kirpal and Wainaina v Murai, the court noted the paper owner must have knowledge of the occupation of the adverse possessor and that he has been dispossessed. The Defendant admitted she worked in Kiambu and that the Plaintiff had been in possession of the suit land, establishing knowledge of the said possession and occupation.

p. 2

Legal principles established

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  • A claimant for adverse possession must prove exclusive, open and uninterrupted possession without interruption for 12 years
  • In a purchase scenario, limitation runs from payment of the last instalment of the purchase price
  • Time stops running against the adverse possessor only on dispossession, the owner retaking possession, or the owner filing suit to assert title

Court orders

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  1. 1.Judgment entered in favour of the Plaintiff allowing the Originating Summons
  2. 2.Declaration that the Plaintiff has acquired title by adverse possession to 0.2 acres out of LOC8/GATUYA/885
  3. 3.Costs of the suit granted to the Plaintiff

Authorities

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Legislation

  • Limitation of Actions ActNot specified (referred to as "the Act")

Cases cited (6)

  • Kasuve Vs Mwaani Investments Limited & 4 Others
    1 KLR 184
  • Wanyoike v Kahiri
    [1979] KLR 239
  • Jandu v Kirpal
    [1975] E A 225
  • Wainaina v Murai and others
    [1976] Kenya L R 227
  • Joseph Gahumi Kiritu Vs Lawrence Munyambu Kabura
    CA No 20 of 1993
  • Githu Vs Ndeete
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under an Originating Summons seeking a declaration of title by adverse possession

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, "Jane Njeri Mwangi (suing as the administrator of the estate of James Mwangi Muchachi) v Jane Waruini Githonge [2020] KEELC 3393 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3393/eng@2020-02-27

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