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ELCAllowedOriginating Summons No 6 of 2007· [2020] KEELC 3616 (KLR)

Gatingu Njaumbe v Camiro Muthengi & another [2020] KEELC 3616 (KLR)

Environment and Land Court
10 February 2020
ECE.C. CheronoLML.N. Mbugua
2,185 words in judgment
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The bottom line

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A man who lived on and farmed land for over 15 years won full ownership from the registered title holders in Kenyan court.

What this practically means

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Executive summary

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By an Originating Summons dated 28th November 2007, Gatingu Njaumbe sought a declaration that he had acquired title to L.R S.THARAKA/TUNYAI"B"/646 and S.THARAKA/TUNYAI"B"/36 by adverse possession, together with an order for transfer and costs. He testified that in 1975 he purchased a 35-acre parcel from M'Mugambi M'Mwarania, occupied and developed it, and that during the 1989 adjudication the land was secretly subdivided into three portions, two of which were registered to the defendants. The defendants, allotted their portions by the Nyaga clan in 1989, obtained title deeds on 31/8/2005 but were chased away by the plaintiff and his sons when they attempted to take possession in 2006. The defendants, the only party to file submissions, argued that the plaintiff's possession was not nec vi, nec clam, nec precario, that adverse possession cannot run against unregistered land, and that time ran only from the 2005 registration, rendering the 2007 suit premature. The court framed a single issue: whether the plaintiff had acquired the two parcels by adverse possession. Applying Sections 7, 13 and 38 of the Limitation of Actions Act, the court held that the defendants were registered as owners in 1989, so time ran from that year - over 15 years. The plaintiff's continuous, exclusive and hostile occupation until 2006 stood uncontroverted, and the defendants admitted never taking possession. The suit was allowed as prayed, with costs to the plaintiff. The judgment was signed by E.C. Cherono at Kerugoya and delivered by L.N. Mbugua at Meru.

Key legal issues

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01

Whether the plaintiff acquired the defendants' parcels by adverse possession

Holding

Yes - the plaintiff's occupation was continuous, open and hostile for over 15 years since 1989, extinguishing the defendants' title

Reasoning

Adjudication occurred in 1989 when the parcels were registered to the defendants, but the defendants never took possession. The plaintiff and his family occupied and developed the entire parcel exclusively and continuously until 2006 when the defendants, having secured titles in 2005, attempted entry. That occupation ran from 1989 to 2005, over 15 years, exceeding the 12-year statutory period, and was adverse to the defendants' claim. The defendants' own testimony confirmed they never possessed the land.

p. 3
02

When time for adverse possession began to run

Holding

Time began running in 1989 upon registration of the defendants as owners during adjudication, not in 2005 when titles were issued

Reasoning

The defendants were registered as owners of their portions in 1989 during adjudication, although title deeds were only issued on 31/8/2005. The court held the critical period ran from registration in 1989, giving a period of over 15 years of the plaintiff's adverse occupation before the defendants' 2006 attempt to take possession. The defendants' submission that time ran only from the 2005 registration was rejected.

p. 3

Legal principles established

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  • Time for adverse possession begins to run when the adverse possessor's occupation becomes hostile to the registered owner's title, and the owner's title is extinguished after twelve years
  • The burden is on the person claiming adverse possession to prove the period of possession, that it was without the true owner's permission, and that acts inconsistent with the owner's enjoyment were done on the land
  • A claim for adverse possession can only be maintained against a registered owner

Court orders

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  1. 1.The Originating Summons is allowed as prayed - a declaration that the plaintiff has acquired L.R S.THARAKA/TUNYAI"B"/646 and S.THARAKA/TUNYAI"B"/36 by adverse possession
  2. 2.The defendants to pay the costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 37
  • Limitation of Actions ActSection 38

Cases cited (4)

  • Mtana Lewa Vs Kahindi Ngala Mwagandi
    (2015) eKLR
  • Peter Gichuki Wanjohi Vs Julia Mumbi Muturi
    (2017) eKLR
  • Sophie Wanjiku John Vs Jane Mwihaki Kimani
    Nairobi ELC Civil Suit No. 490 of 2010
  • Adnam Vs Earl of Sandwich
    (1877) 2QB 485
Jurisdiction invoked
Section 38 of the Limitation of Actions Act - application to the High Court (ELC) for an order that the adverse possessor be registered as proprietor

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gatingu Njaumbe v Camiro Muthengi & another [2020] KEELC 3616 (KLR)", Case Analysis (2020). Originating Summons No 6 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3616/eng@2020-02-10

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