Moses Muchira Njeru & another v Francis Mureithi [2021] KEELC 258 (KLR)
The bottom line
#A Kenyan court awarded one buyer a full acre of land after 12+ years of open occupation, but dismissed his co-claimant's similar claim for weak evidence.
What this practically means
#Executive summary
#Key legal issues
#When time began to run for adverse possession
Time ran from the date each sale agreement became void for lack of Land Control Board consent, not from the defendant's registration as proprietor in 2017
The parties conceded no Land Control Board consent was obtained, so under Section 6(1) of the Land Control Act the agreements became null and void after six months. Relying on Samuel Miki Waweru v Jane Njeri Richu, the court held the vendors' permission was terminated by operation of law and the plaintiffs' continued possession became adverse from that date. Hence the defendant's prematurity submission failed.
Whether the 1st plaintiff acquired 1 acre by adverse possession
Yes - he was in exclusive, open, uninterrupted possession for approximately 15 years before the deceased's death, so his right had crystallised
The 1st plaintiff proved a 1994 sale agreement, took possession immediately, developed the land and lived there with his family without interruption. Applying Kasuve v Mwaani Investments, the court found exclusive open possession as of right for over 12 years. The right had vested before the deceased died, so the land was not available for distribution in the succession.
Whether the 2nd plaintiff proved adverse possession of 0.80 hectares
No - his claim was dismissed as without merit despite his testimony and photograph
The 2nd plaintiff relied on an acknowledgment slip and a photograph as evidence of possession since 1998. The court found the evidence insufficient to establish exclusive possession openly and as of right for the statutory period, and dismissed his claim. No detailed reasoning distinguishing his evidence from the 1st plaintiff's is given in the judgment.
Whether the caution should be removed
No - the caution was lodged in good faith to protect the plaintiffs' interests, so the defendant's claim in the consolidated suit failed
Under Section 71 of the Land Registration Act, a person claiming a right to obtain an interest in land may lodge a caution. The plaintiffs admitted lodging the caution to protect their interests as purchasers in possession when threatened with eviction and sale. The court found the registration justifiable and in good faith, and dismissed the defendant's claim to lift it.
Legal principles established
#- Where a purchaser in a controlled transaction is permitted possession pending completion and the transaction becomes void under Section 6(1) of the Land Control Act, continued possession becomes adverse from the time the transaction becomes void
- A defendant cannot challenge the validity of a sale agreement on grounds of fraud without expert opinion from a document examiner
- Where adverse possession has crystallised before the owner's death, the land is not available for distribution as part of the deceased's estate
Court orders
#- 1.That the 1st Plaintiff is entitled by adverse possession of over 12 years to 1 acre out of Land Parcel Number Mwea/Murinduko/824 registered under Land Registration Act No. 3 of 2012
- 2.That the 1st Plaintiff be registered as the proprietors of 1 acre out of Land Parcel Number Mwea/Murinduko/824 upon subdivision
- 3.That the Land Registrar Kirinyaga is hereby directed to register the 1st Plaintiff as proprietors of 1 acre out of Land Parcel Number Mwea/Murinduko/824 upon subdivision
- 4.The claim by the 2nd Plaintiff is dismissed
- 5.The claim in Wangu'ru SPMCC Case Number 182 of 2017 is dismissed
- 6.Costs of the Originating Summons and of Wangu'ru SPMCC Case Number 182 of 2017 to be paid to the 1st Plaintiff by the 2nd Plaintiff and the Defendant jointly and severally
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act, Cap 22; Order 37 Rule 7 of the Civil Procedure Rules; Section 28(h) of the Land Registration Act No. 3 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Muchira Njeru & another v Francis Mureithi [2021] KEELC 258 (KLR)", Case Analysis (2021). Originating Summons dated 20th November, 2017 and 21st November, 2017; consolidated with Wangu'ru SPMCC Case Number 182 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/258/eng@2021-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.