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ELCDismissedELC Suit No. 226 of 2013 (OS)· [2021] KEELC 578 (KLR)

Samuel Njenga Kimani & 2 others v Jomo Kenyatta University of Agriculture & Technology (JKUAT) [2021] KEELC 578 (KLR)

Environment and Land Court
18 November 2021
LKL. Komingoi
3,314 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Occupying land with an owner's permission can never ripen into ownership, so the court dismissed the squatters' adverse possession claim and ordered them to vacate JKUAT's land.

What this practically means

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Executive summary

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Three officials of Juja Nurseries Self Help Group, suing on behalf of its members, brought an Originating Summons (later converted to a plaint) seeking a declaration that the Jomo Kenyatta University of Agriculture and Technology's right to recover LR No. 9461/12 (Shamba 2), Juja, was barred under the Limitation of Actions Act and that they be registered as owners by adverse possession, having occupied the land openly and peacefully since 1995. The Defendant, registered proprietor since a certificate of title issued on 20 September 2005, denied the claim, asserting the occupation was permissive, that adverse possession does not lie against a government institution, and counterclaimed for vacant possession and mesne profits after issuing a notice to vacate. The court framed four issues: whether the prerequisites of adverse possession were met, the parties' entitlement to reliefs, and costs. It rejected the Defendant's objection that the land was unalienated government land immune under Section 41 of the Limitation of Actions Act, finding the land already alienated and the Government Proceedings Act inapplicable to public universities. However, the Plaintiffs' occupation was found to be permissive, and consensual occupation is not adverse possession; in any event, time ran from 2005 and less than twelve years had elapsed by the January 2013 notice to vacate. The adverse possession claim failed and the suit was dismissed. The Defendant's counterclaim succeeded: the Plaintiffs were given sixty days to deliver vacant possession, mesne profits of Kshs. 300,000/- were awarded, and costs were awarded to the Defendant.

Key legal issues

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01

Whether the suit property is government land immune from adverse possession under Section 41(a)(i) of the Limitation of Actions Act

Holding

The suit property is not government land because it has been alienated; Section 41(a)(i) does not apply and nothing in the Universities Act applies the Government Proceedings Act to public universities

Reasoning

The court held that the certificate of title issued in 2005 shows alienation, so the land is not unalienated government land under Section 41(a)(i). The Defendant's status as a public university under the Universities Act 2012 does not attract the Government Proceedings Act protections, so the Plaintiffs were not barred from claiming adverse possession on this ground.

p. 4
02

Whether the Plaintiffs proved adverse possession

Holding

The claim fails: occupation was permissive (licence) and the 12-year statutory period was not met, time running from 2005

Reasoning

The Plaintiffs entered and occupied with the permission of the Defendant and the local administration; consensual occupation is not adverse possession. Even computing time from the certificate of title in 2005 to the notice to vacate in January 2013, less than 12 years elapsed. The Plaintiffs also breached the licence by subletting to a bar and car wash operators.

p. 4
03

Whether the Defendant is entitled to mesne profits on its counterclaim

Holding

Yes; the Defendant was awarded Kshs. 300,000/- as mesne profits from the date of the notice to vacate in January 2013

Reasoning

Having failed to vacate despite the notice, the Plaintiffs wrongfully occupied and benefited from the land without consent. Relying on the Civil Procedure Act definition of mesne profits and the Halal Meat Products case, the court found the Defendant entitled to damages for the wrongful period of occupation and quantified them at Kshs. 300,000/-.

p. 5

Legal principles established

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  • Permission or consensual occupation is not adverse possession
  • Land already alienated is not government land for purposes of Section 41 of the Limitation of Actions Act, and adverse possession cannot be defeated merely because the owner is a public university
  • Time for adverse possession runs from the date of registration of the proprietor's title

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.The Plaintiffs to give vacant possession of the suit property to the Defendant within sixty (60) days of the date of the Judgment, failing which the Defendant may evict them
  3. 3.The Defendant is awarded Kshs. 300,000/- as mesne profits
  4. 4.The costs of the suit to be borne by the Plaintiffs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Limitation of Actions Act (Cap 22)Sections 7, 37, 38 and 41(a)(i)
  • Constitution of KenyaArticle 62(1)
  • Universities ActNo. 4 of 2012
  • Civil Procedure ActSection 2 (definition of mesne profits)
  • Government Proceedings Actmentioned generally

Cases cited (8)

  • Mohamed Salim Husein & 3 Others vs Egerton University
    [2013] eKLR
  • Masek Ole Tinkoi & 3 Others vs Kenya Grain Growers Limited & 2 Others
    [2018] eKLR
  • Samuel Kihamba vs Mary Mbaisi
    [2015] eKLR
  • Moses vs Lonegrove (Lovegrove)
    [1952] 2 QB 533
  • Mbira vs Gachuhu
    [2002] eKLR
  • Simon Mbugua vs County Government of Trans Nzoia & 2 Others
    [2015] eKLR
  • Mtana Lewa vs Kahindi Ngala Mwangandi
    [2005] eKLR
  • Attorney General vs Halal Meat Products Ltd
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Order 37 Rule 7 of the Civil Procedure Rules and Sections 7, 37 and 38 of the Limitation of Actions Act (Cap 22)

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, "Samuel Njenga Kimani & 2 others v Jomo Kenyatta University of Agriculture & Technology (JKUAT) [2021] KEELC 578 (KLR)", Case Analysis (2021). ELC Suit No. 226 of 2013 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/578/eng@2021-11-18

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