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ELCDismissedOriginating Summons dated 11th September, 2014· [2020] KEELC 3419 (KLR)

Peter Karobia Ribiro & another v Mary Wambui Mungai & another [2020] KEELC 3419 (KLR)

Environment and Land Court
27 February 2020
SOS. Okong'o
2,893 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a family's adverse possession claim because living on ancestral family land with permission is not the same as possessing it against the owner.

What this practically means

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Executive summary

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The applicants, self-described elderly Mau Mau freedom fighters, brought an Originating Summons dated 11th September 2014 seeking a declaration that they were entitled to land parcel Kiambaa/Ruaka/639 (about 2.30 acres) by adverse possession, a permanent injunction restraining the 1st respondent from dealing with the property, an order compelling the 2nd respondent to transfer the property to them, and costs. They claimed occupation since before independence as descendants of Ribiro Munywe, alleging attempted illegal eviction, harassment and demolition of their structures. The 1st respondent, the registered owner, countered that she purchased the property from Hannah Wanjira Ribiro (DW1), a sister of the applicants, obtained a title deed on 25th August 2014 and took vacant possession; she alleged the applicants had fraudulently sought registration and that the suit was an abuse of process. The 2nd respondent did not respond. The 2nd applicant died before the hearing and was not substituted. Okong'o J framed a single issue: whether the applicants had acquired the property by adverse possession. Applying Kasuve v Mwaani Investment Ltd, Kimani Ruchine v Swift, Rutherford Co. Ltd and Wambugu v Njuguna, the court held that any occupation by the applicants was permissive, being with the consent of their father and later their sister DW1, whose ownership had been confirmed in Nairobi High Court Succession Cause No. 3519 of 2003 on 26th June 2014. The 1st respondent thus obtained a clean title, and the suit, filed less than a month later, was premature in any event. The applicants also failed to prove actual occupation: the 1st applicant resided on his own land and used the property only for farming, and his allegedly evicted sons were not parties. The suit was dismissed with costs on 27th February 2020.

Key legal issues

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01

Whether the applicants acquired the suit property by adverse possession

Holding

No. Their occupation was with the consent of their father and subsequently their sister DW1, and they failed to prove actual occupation

Reasoning

The court found the suit property was ancestral land registered in DW1's name in 1982 after succession proceedings, and her ownership was confirmed by a ruling in Succession Cause No. 3519 of 2003 delivered on 26th June 2014, which was not appealed. Any occupation by the applicants was permissive, not adverse. Further, the 1st applicant admitted residing on his own land and using the suit property only for farming, without convincing proof; his sons, allegedly evicted, were not parties. The suit was filed less than a month after the 1st respondent acquired title.

p. 3
02

Whether the 1st respondent's title was encumbered by any adverse possession claim

Holding

No; she obtained a clean title from DW1 free from encumbrance

Reasoning

DW1 was the registered owner and her title had been judicially confirmed shortly before the sale. As the applicants had not matured 12 years' adverse possession against DW1, nothing passed to the 1st respondent subject to any adverse claim. The suit was lodged on 11th September 2014, less than a month after the 1st respondent acquired the property on 25th August 2014, so no requisite period had run against her either.

p. 3

Legal principles established

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  • A claimant must prove exclusive, open possession as of right without interruption for 12 years, either by dispossessing the owner or where the owner has discontinued possession
  • Possession under the consent or permission of the registered owner cannot be adverse

Court orders

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  1. 1.The applicants' suit is dismissed
  2. 2.Costs awarded to the 1st respondent

Authorities

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Legislation

  • Limitation of Actions Act (implied by statute of limitations discussion)not specified

Cases cited (4)

  • Kasuve v Mwaani Investment Ltd & 4 Others
    [2004] 1 KLR 184
  • Kimani Ruchine & Another v Swift, Rutherford Co. Ltd. & another
    (1977) KLR 10
  • Wambugu v. Njuguna
    [1983] KLR 173
  • Mwinyi Hamisi Ali v The Attorney General & Another
    [1997] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over a claim for adverse possession of land (Kiambaa/Ruaka/639)

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, "Peter Karobia Ribiro & another v Mary Wambui Mungai & another [2020] KEELC 3419 (KLR)", Case Analysis (2020). Originating Summons dated 11th September, 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3419/eng@2020-02-27

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