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ELCAllowedELC Case of Murang'a (Origination Summons) — formerly HCCC No 350 of 2005· [2020] KEELC 3904 (KLR)

Wilson Njoroge Kamau v Nganga Muceru Kamau [2020] KEELC 3904 (KLR)

Environment and Land Court
27 January 2020
JKJ. G. Kemei
4,115 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Murang'a court gave a family land they had occupied since 1971, ruling the registered owner's title expired after 12 years of their open possession.

What this practically means

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Executive summary

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The Plaintiff, son and successor of the late Kamau Kagema, claimed title to land parcel LOC 2/KANGAARI/506 by adverse possession under the Limitation of Actions Act. He averred that his father purchased the land in 1971 from Njoroge Muceru, the then registered owner, and that father and son took possession that year, planting tea, trees and subsistence crops; his father died in 1999 leaving him in continuous occupation. The Defendant, the registered proprietor following a 2005 transfer/change of name, denied the Plaintiff's possession, asserting occupation since the 1960s. The suit had earlier been heard exparte and determined in 2015, but that judgment was set aside on the Defendant's application over defective service, leading to an inter partes hearing. The court found the Defendant's evidence internally inconsistent — his sworn evidence in LDT No 11 of 2005 showed he was in Mau Narok from 1964 and returned only in 1992, and he admitted at trial the Plaintiff currently utilises the land. The uncontroverted 1971 sale agreement, corroborating testimony, and a KTDA verification certificate showing 3284 tea bushes planted by 1979 established open, exclusive and continuous possession. Applying Kasuve v Mwaani Investments, Wanyoike v Kahiri and Kweyu v Omuto, the court held time ran from 1971, the Defendant's title was extinguished in 1983, and he thenceforth held the title in trust for the Plaintiff. The 2005 tribunal case and later litigation did not interrupt the period. Judgment was entered for the Plaintiff with declarations of extinguished title and entitlement, and orders registering him as absolute proprietor, the order to serve as an instrument of transfer. Costs were awarded to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff proved adverse possession

Holding

Yes. The Plaintiff and his father entered the suit land in 1971 following a purchase from the then registered owner Njoroge Muceru, and the Plaintiff has been in exclusive, open and continuous occupation since, planting tea, trees and subsistence crops. The Defendant's title was extinguished in 1983.

Reasoning

The sale agreement of 3/8/1971 (PEX 16a and 16b) was uncontroverted. PW1 and PW2 corroborated occupation since 1971. The KTDA verification certificate showed 3284 tea bushes planted by 1979. The Defendant's claim to possession since the 1960s was contradicted by his own sworn evidence in LDT No 11 of 2005 that he was in Mau Narok from 1964 and returned in 1992. His possession was never reasserted and the injunction of 17/6/11 confirmed the Plaintiff in possession.

p. 4
02

Date of accrual and extinguishment of title

Holding

Time began running in 1971 upon purchase and possession; the Defendant's title was extinguished in 1983, well before the Defendant caused the title to be changed into his name in 2005.

Reasoning

Relying on Wanyoike v Kahiri, limitation in a purchase scenario runs from the date of payment of the last instalment. By 1983 twelve years had elapsed without interruption, and the Defendant thereafter held the extinguished title in trust for the Plaintiff. The 2005 Land Dispute Tribunal case and subsequent suits did not stop time from running.

p. 4

Legal principles established

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  • A claimant must prove exclusive, open and uninterrupted possession for 12 years, either after dispossessing the owner or where the owner discontinued possession.
  • In a purchase scenario, limitation runs from payment of the last instalment of the purchase price.
  • Time stops running when the owner asserts his right by legal proceedings or effective entry, or when the adverse possessor admits the owner's right.
  • Whether possession is adverse is a legal conclusion drawn from proved facts; possession itself is a matter of fact.

Court orders

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  1. 1.A declaration that the title of NGANGA MUCERU KAMAU to LOC 2/KANGAARI/506 has been extinguished by the Plaintiff's Adverse Possession for more than 12 years in terms of the Limitations of Actions Act
  2. 2.A declaration that the Plaintiff has become entitled to Adverse Possession of the suit land registered in the name of the Defendant
  3. 3.An order that the Land Registrar Murang'a register the Plaintiff as absolute proprietor of land parcel Number LOC2/KANGARI/506 in place of the Defendant
  4. 4.A direction to the Land Registrar Murang'a that the order shall be an instrument of transfer of ownership of the whole suit land from the Defendant to the Plaintiff
  5. 5.Costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Limitation of Actions ActCap 22, ss 7, 13(1)-(3), 16, 17, 18, 37, 38(1)-(2)
  • Land Registration ActNo 6 of 2012, s 28(h)
  • Land ActNo 6 of 2012, s 7
  • Civil Procedure Actss 6 and 7

Cases cited (5)

  • Kasuve Vs Mwaani Investments Limited & 4 others
    1 KLR 184
  • Wanyoike v Kahiri
    [1979] KLR 239
  • Joseph Gahumi Kiritu Vs Lawrence Munyambu Kabura
    CA No 20 of 1993
  • Githu Vs Ndeete
  • Kweyu v Omuto
    CA Civ Appeal 8 of 1990 (as yet unreported)
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act, Cap 22 — application to the High Court (now 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 (4)

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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, "Wilson Njoroge Kamau v Nganga Muceru Kamau [2020] KEELC 3904 (KLR)", Case Analysis (2020). ELC Case of Murang'a (Origination Summons) — formerly HCCC No 350 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3904/eng@2020-01-27

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