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ELCDismissedOriginating Summons (suit land LOC.20/GITHURI/216 now 3893-3908)· [2020] KEELC 3821 (KLR)

Samson Gitau Daniel Kirume v Muthoni Waitara & 4 others [2020] KEELC 3821 (KLR)

Environment and Land Court
30 January 2020
GKG J Kemei
1,654 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 45-year-old adverse possession claim because the buyer had abandoned the land, proving that possession must be continuous and uninterrupted for 12 years.

What this practically means

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Executive summary

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The Plaintiff sued by originating summons seeking a declaration of absolute title by adverse possession over land parcel LOC.20/GITHURI/216 (now subdivided into parcels 3893-3908), and an order compelling the Defendants to transfer the land to him. He claimed he purchased the land from the original owner, Waitara Githige, in 1975 and had been in open, exclusive and uninterrupted occupation since, relying on two 1975 agreements, a borehole dug in 1986, a kiosk built in 1985 and tobacco cultivation. The 1st Defendant, widow and administrator of Waitara's estate, denied any sale, asserting the land had remained bare, uncultivated and in her control until sold to the 2nd Defendant, who purchased it through transmission in Succession Cause No. 398 of 2016 and subdivided it, selling some plots to the 3rd-5th Defendants. The 3rd-5th Defendants filed no response. The court, applying Kasuve v Mwaani Investments and the Limitation of Actions Act, framed the sole issue as whether the Plaintiff proved adverse possession. Following a site visit, the court found the borehole and kiosk disused, the land bushy, and fencing erected by neighbouring owners, not the Plaintiff. The Plaintiff admitted relinquishing possession in the 1990s. The court held he failed to prove continuous, exclusive, uninterrupted possession for 12 years or animus possidendi, dismissed the suit and awarded costs to the 1st and 2nd Defendants.

Key legal issues

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Whether the Plaintiff established title by adverse possession

Holding

No - the Plaintiff failed to prove continuous, exclusive and uninterrupted possession for 12 years

Reasoning

The Plaintiff bought the land in 1975 but admitted abandoning cultivation and kiosk operations in the 1990s. The court's site visit found the borehole and kiosk disused, the land bushy, fencing done by neighbours, and no occupation. His use of the land was not inconsistent with the registered owner's rights; animus possidendi was not established, so the claim failed on a balance of probabilities.

p. 2

Legal principles established

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  • A claimant seeking title by adverse possession must prove exclusive, open, uninterrupted possession as of right for 12 years, either by dispossessing the owner or where the owner discontinued possession voluntarily; relinquishing possession breaks the claim
  • Fencing denotes control of land; a claimant who has not fenced or taken full control cannot establish possession
  • Possession inconsistent with the registered owner's rights (animus possidendi) is required

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the 1st and 2nd Defendants against the Plaintiff

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)sections 7, 13, 16, 17 and 38
  • Land Registration Act No 6 of 2012section 28(h)
  • Land Act 2012section 7

Cases cited (2)

  • Kasuve Vs Mwaani Investments Limited & 4 others
    1 KLR 184
  • Francis Gacharu Kariri v Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (UR)
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act (Cap 22), section 38, and sections 7, 13, 16, 17 of the Act and section 28(h) of the Land Registration Act, 2012; section 7 of the Land Act, 2012

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, "Samson Gitau Daniel Kirume v Muthoni Waitara & 4 others [2020] KEELC 3821 (KLR)", Case Analysis (2020). Originating Summons (suit land LOC.20/GITHURI/216 now 3893-3908). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3821/eng@2020-01-30

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