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ELCDismissedPlaint dated 13th May 2014 (number not stated in judgment)· [2020] KEELC 3946 (KLR)

Daniel Mwachinga Mwachidzungu v Tom Mwachidzungu & 3 others [2020] KEELC 3946 (KLR)

Environment and Land Court
23 January 2020
2,450 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a registered owner's trespass suit, finding land used by the whole family for decades was family property despite his title.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Plot No. Kilifi/Forodhani/4, sued his four nephews for vacant possession, a permanent injunction and a mandatory injunction, alleging they trespassed onto the suit property in mid-2013, cultivating it and erecting structures. The Defendants admitted the Plaintiff's registration but asserted the title was held in trust for the Mwachidzungu family, that they were born and raised on the land, and that they had acquired title by adverse possession; they also pleaded limitation and abuse of process. At trial the Plaintiff's son, testifying under a power of attorney, described a 15th July 1970 written agreement sub-dividing about 30 acres jointly acquired by the Plaintiff and his two brothers, with the Plaintiff taking Plot 4. The court found the agreement did not clearly reference the suit property or specify acreages, and noted the Plaintiff inconsistently described the land sub-divided. The Plaintiff's own letters of March 2014 and the Area Chief's letter of 28th May 2014 established that the Defendants had lived on the land with their parents since birth, and that their father Karisa and mother were buried on Plot 4 without the Plaintiff's permission, which was not shown to be required. The court held the claim of a 2013 invasion to be an outright lie and found that although the title stood in the Plaintiff's name, the suit property was family property used by all members of the Mwachidzungu family over a long period. The suit was dismissed with no order as to costs, given the family relationship.

Key legal issues

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01

Trespass by the Defendants

Holding

Not proved; the claim that the Defendants invaded in 2013 was found to be false

Reasoning

The Plaintiff's own letters of March 2014 and the Area Chief's letter of 28th May 2014 showed the Defendants had lived on the land with their parents since birth and buried their parents there. The Plaintiff admitted the burials and could not show his permission was required or given. He had never attempted eviction despite holding title since 1990.

p. 4
02

Nature of the Plaintiff's title over Plot No. Kilifi/Forodhani/4

Holding

Although registered in the Plaintiff's name, the property was family property of the Mwachidzungu family

Reasoning

The 1970 sub-division agreement did not clearly relate to the suit property, and the Plaintiff's account of what was sub-divided shifted between pleadings and trial. The evidence showed the whole family had resided on the parcel before differences arose.

p. 4
03

Defendants' claim of trust and adverse possession

Holding

The court did not make a definitive finding on trust or adverse possession, instead rejecting the Plaintiff's trespass claim on the evidence

Reasoning

The Defendants pleaded trust and adverse possession, but the court disposed of the suit on the failure of the Plaintiff's proof of trespass, noting the long family residence on the land and burial of the Defendants' parents there.

p. 4

Legal principles established

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  • Where a property has been used as family property by all members of a family over a long period, a registered proprietor may fail to establish recent trespass and obtain possession

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.No order as to costs (each party to bear their own costs) given the relationship between the parties

Authorities

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Legislation

  • Limitation of Actions Act (implied by the plea that the suit is statutorily time-barred and adverse possession)Not specifically cited
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court over the land dispute (provision not stated in judgment)

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, "Daniel Mwachinga Mwachidzungu v Tom Mwachidzungu & 3 others [2020] KEELC 3946 (KLR)", Case Analysis (2020). Plaint dated 13th May 2014 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3946/eng@2020-01-23

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