Rose Wangui Wanderi (suing as the personal legal representative to the estate of Hezron Gatheru Kuria) v Samuel Mwangi Githamaro [2021] KEELC 327 (KLR)
The bottom line
#A Kenyan court handed a daughter 0.8 acres her family occupied for decades, ruling the buyer's ownership expired after 12 years of open occupation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved adverse possession over the 0.8 acres
Yes - the court found the Plaintiff proved her claim on a balance of probabilities, time having run from the Defendant's registration in 1984 and expiring in 1996
The court accepted that the Defendant was registered in 1984 after purchasing one acre from the deceased, who remained in occupation of the balance. Since the deceased and later the Plaintiff occupied the land openly and continuously, without force, stealth or licence, the limitation period under section 7 expired in 1996, extinguishing the Defendant's title to the claimed portion during the deceased's lifetime. As administrator, the Plaintiff's claim was founded on possession that crystallized in 1996.
Whether the occupation of the Plaintiff and her deceased father was with the Defendant's permission
No - the plea of licence failed because the deceased had sued the Defendant at the Land Dispute Tribunal and the Defendant admitted the purchase while Kuria lived on the land
The Defendant contended that his in-laws lived on the land with his permission out of respect. The court rejected this as untenable because during his lifetime the deceased brought the Land Dispute Tribunal case in which the Defendant admitted purchasing one acre and that Kuria lived on the suit land. The claim of licence was therefore inconsistent with the admitted occupation and dispute.
Legal principles established
#- In the case of registered land, adverse possession dates from the granting of the certificate of title, when the title holder becomes entitled to possession
- Possession of land by a claimant is not adverse where it is with the permission of the registered owner
Court orders
#- 1.The Plaintiff is entitled to be registered as the proprietor of a portion of 0.8 acres in land parcel LOC16/KIMANDI/WANYAGA/373 by way of adverse possession
- 2.The title in the name of the Respondent, Samwel Mwangi Githamaro, in respect of a portion of 0.8 acres to be subdivided forthwith and 0.8 acres be registered in the name of the Plaintiff
- 3.The subdivision to adhere as much as practicable to the settlement of the parties on the ground
- 4.The Defendant to execute all appropriate documents and avail the original title within 15 days, in default the Land Registrar is authorised to execute the documents and dispense with the original title
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction under the Limitation of Actions Act (Cap 22), including section 38, invoked by Originating Summons for adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Rose Wangui Wanderi (suing as the personal legal representative to the estate of Hezron Gatheru Kuria) v Samuel Mwangi Githamaro [2021] KEELC 327 (KLR)", Case Analysis (2021). ELC No. 12B of 2019 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/327/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.