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ELCAllowedNot stated in the judgment (plea dated 11th April 2018)· [2021] KEELC 916 (KLR)

Tabitha Githumbi v Gichuhi Githumbi & 2 others [2021] KEELC 916 (KLR)

Environment and Land Court
12 November 2021
ECE.C. Cherono
2,740 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who won a court case but never enforced it for over 12 years lost the land to the person actually living on it.

What this practically means

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Executive summary

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By a plaint dated 11th April 2018, the plaintiff, administratrix of the estate of her late husband John Cherere Mwangi, sought cancellation of the registration of the 3rd defendant as owner of land parcel MWERUA/KAGIO/2732 and registration of the parcel in her name, with costs. She testified that the original parcel MWERUA/KAGIO/646 had been acquired by the defunct County Council of Kirinyaga for town expansion, and her late husband was allocated plot 179 Kagio, within what became parcel 2732, where she remains in occupation. She alleged that the 1st and 2nd defendants had fraudulently transmitted the original parcel to themselves through Embu Succession Cause No. 80 of 1993. The 3rd defendant, a purchaser for Ksh. 1.4 million, pleaded res judicata, abuse of process and limitation, relying on an ex-parte judgment by Lenaola J in Embu HCCC No. 42 of 1999 'A'. The court framed four issues and held the suit was not res judicata because the key issue in the former suit, whether the plaintiff's plot encroached the former plaintiff's land, was never resolved on merit. Applying the Court of Appeal's decision in M'Ikiara M'Rinkanya, the court held that the defendants' failure to execute the 2005 decree for over twelve years extinguished their rights, and the plaintiff in occupation acquired title by adverse possession. The plaintiff's claim succeeded in full: the registrations over the original parcel and its sub-divisions were cancelled, the register was rectified in her favour, and the defendants were ordered to bear costs jointly and severally.

Key legal issues

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01

Res judicata

Holding

The suit is not res judicata; the key issue in the former suit (whether the defendant's plot encroached the plaintiff's land) was never resolved, so the issues were not directly and substantially determined on merit.

Reasoning

The former Embu High Court case concerned parcel MWERUA/KAGIO/2636 and was decided ex-parte. The court held that a surveyor was a necessary witness to verify whether the defendant's plot 630/179 encroached the plaintiff's land; since that was the main issue left unresolved, the current suit's issues were not directly and substantially determined on merit.

p. 3
02

Limitation of actions

Holding

The defendants' claim founded on the 2005 decree is statute-barred under Section 4(4) of the Limitation of Actions Act; twelve years having elapsed without execution, the plaintiff in possession acquired title by adverse possession.

Reasoning

The defendants never executed the 2005 decree evicting the plaintiff, who has remained in occupation of the suit land for over twelve years. Following the Court of Appeal decision in M'Ikiara M'Rinkanya, the decree holder's rights were extinguished and the plaintiff acquired possessory title by adverse possession, extinguishing the defendants' titles.

p. 4
03

Cancellation of the 3rd defendant's title

Holding

The 3rd defendant's title to MWERUA/KAGIO/2732 is liable to be cancelled as a sub-division of a parcel whose root title was statute-barred.

Reasoning

Because the suit property is a sub-division of MWERUA/KAGIO/2636, the subject of the 2005 decree found statute-barred, its title is equally liable to cancellation notwithstanding the 3rd defendant's claim to be a purchaser for value without notice and reliance on Article 40 of the Constitution.

p. 4

Legal principles established

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  • A suit is not res judicata where the issues raised in the former suit were not directly and substantially determined on merit.
  • A decree not enforced within twelve years is extinguished and the judgment debtor in possession acquires title by adverse possession.

Court orders

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  1. 1.The registration of GICHUHI GITHUMBU and/or Administrators in land parcel No. MWERUA/KAGIO/646 and all resultant sub-divisions are hereby cancelled.
  2. 2.The 3rd defendant's land parcel number MWERUA/KAGIO/2732 being a portion of the resultant sub-division of land parcel number MWERU/KAGIO/2636 be and is hereby cancelled.
  3. 3.The Land Registrar, Kirinyaga County is hereby directed to rectify the register by entering the plaintiff, TABITHA NJERI CHERERE as owner of land parcel number MWERUA/KAGIO/2732.
  4. 4.The costs of this suit shall be borne by the defendants, jointly and severally.

Authorities

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Legislation

  • Limitation of Actions ActSection 4(4)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 17
  • Constitution of KenyaArticle 40
  • Civil Procedure RulesOrder 2 Rule 15; Orders 3, 7 and 11

Cases cited (5)

  • Henderson Vs Henderson
    (1843) 67 E.R 313
  • Joshua Ngatu Vs Jane Mpinda & 3 others
    (2019) e K.L.R
  • Trust Bank Limited Vs Amin Company Ltd & Anor
    (2000) KLR 164
  • M'Ikiara M'Rinkanya & Another Vs Gilbert Kabeere M'Mbijiwe
    (2007) e K.L.R
  • Lougher Vs Donovan
Jurisdiction invoked
Original civil suit; Environment and Land Court jurisdiction (no specific constitutional provision cited)

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, "Tabitha Githumbi v Gichuhi Githumbi & 2 others [2021] KEELC 916 (KLR)", Case Analysis (2021). Not stated in the judgment (plea dated 11th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/916/eng@2021-11-12

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