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ELCPartially AllowedOriginating Summons dated 19th September, 2019· [2021] KEELC 1043 (KLR)

Winnie Wakio Ngari v Esther Micere Nyumu & 2 others [2021] KEELC 1043 (KLR)

Environment and Land Court
5 November 2021
ECE.C. Cherono
2,428 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kerugoya court handed two plots to a woman who occupied them openly for over twelve years, proving long, uninterrupted possession beats paper title.

What this practically means

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Executive summary

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By an Originating Summons dated 19th September 2019, the plaintiff Winnie Wakio Ngari sought to be registered as proprietor of land parcels Kabare/Nyangati/6156 and 6157 on the basis of adverse possession. She claimed to have occupied the land since 1996 under an allocation of Jua Kali Plot No. 59 by the defunct Kerugoya/Kutus Municipal Council following sub-division of the original parcel Kabare/Nyangati/3158, and produced photographs of semi-permanent and permanent houses, assorted trees and a mature avocado tree. The defendants, who inherited and were gifted the parcels through Succession Cause No. 83 of 1995 (Embu) and subsequent sub-division and transfers in 2013 and 2018, countered that the council never owned the original land and that the plaintiff entered in 2013; they had separately sued her for eviction in Wang'uru PMCC Nos. 47 and 48 of 2019. The court framed a single issue: whether the plaintiff had acquired the suit properties by adverse possession. Applying Sections 7, 13, 16, 17 and 38 of the Limitation of Actions Act and the principles in Mbura Vs Gichuhi and Jandu Vs Kirplal, the court found the plaintiff's sworn testimony uncontroverted, treated the age of the developments as corroborating occupation of more than 12 years, and held that the succession, sub-division and transfers did not interrupt her right. The claim was allowed; the plaintiff is to be registered as proprietor of both parcels, the eviction counterclaims were dismissed, and each party was ordered to bear her own costs. Judgment delivered at Kerugoya on 5th November 2021 by E.C. Cherono, ELC Judge.

Key legal issues

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Whether the plaintiff acquired Kabare/Nyangati/6156 and 6157 by adverse possession

Holding

Yes. The plaintiff occupied the land exclusively and openly since 1996, exceeding the statutory 12-year period, and the defendants never explained or challenged how she took possession; her title by adverse possession is made out and the registered proprietors' titles are extinguished.

Reasoning

The court applied Sections 7, 13, 16, 17 and 38 of the Limitation of Actions Act. The plaintiff testified to exclusive, quiet possession since 1996 and produced photographs of old semi-permanent and permanent houses, assorted trees and a mature flowering avocado tree which the court assessed as physical indicators of occupation exceeding 12 years. The defendants admitted occupation but never stated when she entered or what steps they took to stop her; their evidence was uncontroverted. The 2012 sub-division, 2013 and 2018 transfers and the succession grant did not interrupt the running of time under Section 16. The counterclaims for eviction in PMCC 47 and 48 of 2019 accordingly failed.

p. 3

Legal principles established

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  • A trespasser who takes possession of land belonging to another openly, notoriously and to the exclusion of all others for at least twelve years without interruption extinguishes the proprietor's title and may apply to be registered as proprietor
  • Taking out letters of administration, sub-division and transfer of land to others does not interrupt a pending right of adverse possession, per Section 16 of the Limitation of Actions Act
  • Uncontroverted sworn evidence as to the date of entry onto land must be believed where the registered owners give no account of how the claimant took possession

Court orders

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  1. 1.The Plaintiff/Applicant WINNIE WAKIO NGARI be registered as proprietor of Land Parcel Number Kabare/Nyangati/6156 and Kabare/Nyangati 6157
  2. 2.Each party to bear her own costs of this suit and the counterclaim
  3. 3.The 2nd and 3rd Defendants/Respondents' counterclaim by way of their suits filed in Wang'uru Magistrate's Court being PMCC No. 47 and 48 of 2019 dismissed

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13(1)-(3)
  • Limitation of Actions ActSection 16
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 38(1)-(2)
  • Limitation of Actions ActSections 9, 10, 11, 12 and 37

Cases cited (4)

  • Mbura Vs Gachuhi
    (2002) 1 E.A.L.R 39 / (2002) I EALR 137
  • Simon Gituto Ngari Vs Michael Kaaru Njoroge & Another
    (2019) eKLR
  • The Seventh Day Adventist Church (E.A) LTD (being sued on behalf of S.D.A Church & Another Vs Salome Wamutira Mukuria
    (2018) eKLR
  • Jandu Vs Kirplal & Another
    1975 EA 225
Jurisdiction invoked
Original jurisdiction under Section 38 of the Limitation of Actions Act (Cap 22) for an order that a person entitled by adverse possession be registered as proprietor

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, "Winnie Wakio Ngari v Esther Micere Nyumu & 2 others [2021] KEELC 1043 (KLR)", Case Analysis (2021). Originating Summons dated 19th September, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1043/eng@2021-11-05

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