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ELCDismissedE.L.C. Case No. 149 of 2014· [2020] KEELC 3712 (KLR)

Martin Mugo Migwi v Njeru M’Uthi & 2 others [2020] KEELC 3712 (KLR)

Environment and Land Court
16 January 2020
YAY.M. Angima
2,757 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Embu court dismissed a 37-year-old land claim because the buyer never proved 12 years of uninterrupted, hostile possession against the registered owner.

What this practically means

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Executive summary

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The Applicant filed an originating summons (dated 1983, amended 1991) claiming parcels Gaturi/Nembure/2778, later subdivided into 4439 and 4440, by adverse possession and/or purchase, alleging a 1969 sale agreement with the 1st Respondent and occupation since 1969. He sought orders that the 2nd and 3rd Respondents transfer the subdivided parcels to him. The 1st Respondent denied the sale, explaining he was registered as proprietor while a minor (born 1958), obtained his title on attaining majority in 1976, subdivided in 1984 and sold parcel 4439 to the 2nd Respondent and parcel 4440 to the original 3rd Respondent, both purchasers for value without notice. The 2nd Respondent had earlier sued the Applicant for eviction in Embu RMCC No. 37 of 1987, in which a Land Disputes Tribunal award directing the Applicant to vacate was adopted. By consent, that decree was set aside so the whole dispute could be heard by this court. The court framed three issues: when time began running, whether adverse possession was proved, and costs. It found the Applicant could not have bought the land in 1969 from an 11-year-old minor and that no liability could arise absent ratification; the earliest possession was 1976, so the 12-year period had not run by 1983. His possession was permissive, acknowledged the owner's title, and was interrupted by the 2nd Respondent's 1987 eviction suit and the 3rd Respondent's effective cultivation of parcel 4440. The originating summons was dismissed in its entirety with costs to the Respondents.

Key legal issues

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01

When time for adverse possession began to run

Holding

Time began running at the earliest in 1976 when the Applicant took possession after completing payment and when the 1st Respondent attained majority

Reasoning

Documentary evidence showed the 1st Respondent was born in 1958 and could not have sold the land in 1969 (aged 11) or 1973 (aged 15). A minor's transaction could not bind him absent ratification. The Applicant conceded in cross-examination that he took possession only after completing payment in 1975, and had earlier told the Tribunal he took possession in 1976. Thus only about 7 years had elapsed when the suit was filed in 1983.

p. 3
02

Whether the Applicant proved adverse possession

Holding

No; his possession was permissive, acknowledged the owner's title, and was interrupted by the 2nd and 3rd Respondents

Reasoning

The Applicant's occupation originated in permission granted by the 1st Respondent's father during the latter's minority and terminated in 1976. The Applicant assisted in selling parcel 4439 to the 2nd Respondent, showing his possession was not hostile. Time was interrupted by the 2nd Respondent's eviction suit in 1987 and by the 3rd Respondent taking effective possession and farming parcel 4440 for three years before being forcibly displaced.

p. 3

Legal principles established

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  • Possession under a licence or permission of the owner cannot found a claim in adverse possession; possession must be as of right and hostile to the owner's title
  • Interruption of possession by the owner stops time running under the Limitation of Actions Act
  • A minor's transaction of land is unenforceable against him absent ratification upon attaining majority

Court orders

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  1. 1.The Applicant's originating summons dated 2nd September 1983 and amended on 7th August 1991 be and is hereby dismissed in its entirety against all the Respondents
  2. 2.The Applicant shall bear the costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSections 37 and 38
  • Limitation of Actions ActCap. 22
  • Civil Procedure ActSection 27 (proviso)

Cases cited (6)

  • Wambugu Vs Njuguna
    [1983] KLR 172
  • Githu Vs Ndeete
    [1984] KLR 776
  • Kasuve Vs Mwaani Investments Ltd & 4 Others
    [2004] 1KLR 184
  • Kimani Ruchine Vs Swift Rutherfords & Co Ltd
    [1980] KLR 10
  • Wanja Vs Saikwa No. 2
    [1984] KLR 284
  • Hussein Janmohammed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act (Cap. 22), Sections 37 and 38

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Martin Mugo Migwi v Njeru M’Uthi & 2 others [2020] KEELC 3712 (KLR)", Case Analysis (2020). E.L.C. Case No. 149 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3712/eng@2020-01-16

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