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Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment

Monikah Wangari Mukabi v Amos Ngugi Mukabi [2021] KEELC 924 (KLR)

Environment and Land Court
15 November 2021
2,124 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan mother won family land registered in her son's name by proving she lived on it openly for over 40 years without challenge.

What this practically means

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Executive summary

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The Plaintiff, mother of the Defendant, sued on 21 July 2020 seeking declarations that she had acquired LR LOC16/KIGORO/991 by adverse possession, that the Defendant's title was extinguished and that he held the land in trust for her, together with a permanent injunction and costs. Judgment in default was entered on 25 February 2021 after the Defendant, though duly served, failed to enter appearance or file a defence. At formal proof on 15 July 2021 the Plaintiff testified that she settled on the land in 1978 upon marriage to the Defendant's father, has developed it with a permanent house, buried her husband there, and that the land was registered in the Defendant's name while he was a minor to hold in trust for her and her family. The Defendant lives in Naivasha and offered no evidence. The court framed three issues: adverse possession, trust, and costs. Applying sections 7 and 17 of the Limitation of Actions Act and authorities including Wambugu v Njuguna and Githu v Ndeete, it found over twelve years of open, exclusive occupation evidencing animus possidendi, unchallenged by the registered owner. On trust, applying the Supreme Court's Kieba criteria and section 28 of the Land Registration Act, it held that registration in a minor's name without any evidence of purchase showed family ownership and proved a customary trust. Judgment was entered for the Plaintiff as prayed, with no orders as to costs. Delivered at Thika on 15 November 2021 by J. G. Kemei J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff is entitled to the title by way of adverse possession.
  2. 2.Whether trust is founded.
  3. 3.Costs of the suit.

Key legal issues

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01

Whether the Plaintiff acquired title to the suit land by adverse possession

Holding

Yes - the Plaintiff proved adverse possession, having occupied the land openly and continuously since 1978, a period far in excess of twelve years, without interruption by the registered owner.

Reasoning

The Plaintiff testified that she entered the land in 1978 upon marriage, has lived there to date, constructed a permanent house, and buried her husband on the land, demonstrating animus possidendi inconsistent with the Defendant's title. The Defendant, who lives in Naivasha, entered no appearance and led no evidence to displace this occupation or to repossess the land. Time having run for over twelve years, adversity crystalized and title vested in the Plaintiff.

p. 3
02

Whether a customary trust in favour of the Plaintiff was established

Holding

Yes - the land was registered in the Defendant's name while he was a minor to hold in trust for the Plaintiff and her family; the registration in a minor's name shows he did not purchase the land, so he held it for the Plaintiff's family.

Reasoning

Applying the elements in the Kieba case, the parties are family members; the claimant is the Defendant's mother; the land was registered in the Defendant's name when he was a minor to hold in trust for her and her family; and no evidence of purchase was tendered. The claim is directed against a registered proprietor who is a family member, satisfying the criteria for a customary trust as an overriding interest under section 28 of the Land Registration Act.

p. 3

Legal principles established

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  • Customary trust is an overriding interest in registered land under section 28 of the Land Registration Act.
  • Occupation and possession are not necessary for a customary trust to be established.
  • Twelve years of adverse possession extinguishes the registered proprietor's title under sections 7 and 17 of the Limitation of Actions Act.

Court orders

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  1. 1.Judgment in favour of the Plaintiff as prayed, including a declaration that the Plaintiff has acquired LR LOC16/KIGORO/991 by adverse possession
  2. 2.A declaration that the Defendant's title to the suit land is extinguished in favour of the Plaintiff, that the Defendant holds the suit land in trust for the Plaintiff, and that the suit land be transferred to the Plaintiff
  3. 3.A permanent injunction restraining the Defendant, his agents, servants, employees, wife or wives and/or children from interfering with the Plaintiff's quiet and peaceful enjoyment of the suit land
  4. 4.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; claim for adverse possession and customary trust under the Limitation of Actions Act and the Land Registration Act

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is the conclusion of the Court that on a balance of probabilities the Plaintiff has proven her claim of adverse possession.
p. 3adverse possession proved
In the end the Court finds that customary trust has been proven.
p. 3customary trust established
I order judgment in favour of the Plaintiff as prayed
p. 3disposition
I make no orders as to costs.
p. 3costs
The mere change of ownership of land which is occupied by another person under Adverse Possession, does not interrupt such person's Adverse Possession.
p. 2principle on change of ownership

Issues in the judgment

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minor

The plaint date is given as '21/7/202o' (typographical error for 2020) and the affidavit of service is dated '1/1/2021' while service is said to have occurred on 11/11/2020.

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, "Monikah Wangari Mukabi v Amos Ngugi Mukabi [2021] KEELC 924 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/924/eng@2021-11-15

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