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ELCPartially AllowedOrigination Summons dated 14th February 2019· [2021] KEELC 1240 (KLR)

Susan Nyambura Mburu v Agnes Muthoni Karaya [2021] KEELC 1240 (KLR)

Environment and Land Court
28 October 2021
YAY. M. Angima
976 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By an origination summons dated 14th February 2019 brought under Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, 2010, the Applicant sought declarations that she had acquired title to the suit properties by adverse possession and consequential orders for transfer. She claimed open, continuous and peaceful occupation since 1974, notwithstanding the Respondent's registration as proprietor in 1994. The Respondent, served through substituted service with leave of the court, did not enter appearance, and interlocutory judgment was entered on 18th February 2020. At formal proof the Applicant relied on her affidavit evidence and exhibits, and filed written submissions in September 2021. Applying the summary of the elements of adverse possession in Kasuve v Mwaani Investments Ltd and the Court of Appeal's decision in Chevron (K) Ltd v Harrison Charo Wa Shutu, the court found that the Applicant had constructed structures on the land, settled thereon, and buried her deceased husband there, demonstrating animus possidendi and acts inconsistent with the true owner's rights. Her uncontroverted evidence established occupation well beyond the 12-year statutory period. The court entered judgment for the Applicant, declaring her entitled to be registered as proprietor, authorizing the Deputy Registrar to execute the necessary transfer instruments, and directing the County Land Registrar Nyandarua to dispense with production of the original title deeds. The court made no order as to costs.

Key legal issues

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01

Whether the Applicant proved adverse possession for the statutory 12-year period

Holding

Yes - the Applicant had occupied the suit properties since 1974 openly and continuously, with animus possidendi, and her acts were inconsistent with the rights of the true owner

Reasoning

The Applicant led uncontroverted evidence, by way of her originating summons, supporting affidavit and exhibits, that she had constructed structures, settled on, and buried her deceased husband on the suit properties since 1974. The Respondent was served by substituted service, did not enter appearance, and interlocutory judgment was entered. Applying the Kasuve and Chevron formulations, the court found exclusive, open and uninterrupted occupation far exceeding the 12-year statutory period.

p. 2

Legal principles established

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  • A claimant seeking title by adverse possession must prove exclusive, open, uninterrupted possession as of right for 12 years

Court orders

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  1. 1.A declaration that the Applicant has become entitled to be registered as proprietor of L.R No. Nyandarua/Kiriita Mairo Inya Block 2 Ndemi and Ngai Ndeithia/579 on account of adverse possession
  2. 2.The Deputy Registrar of the court is authorized to sign and execute all necessary forms and documents to facilitate transfer of the suit properties to the Applicant
  3. 3.The County Land Registrar Nyandarua shall dispense with the production of the original title deeds for the suit properties during the transfer
  4. 4.There shall be no order as to costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure Rules, 2010Order 37 Rule 7

Cases cited (7)

  • Wambugu v Njuguna
    [1983] KLR 173
  • Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 Others
    [2018] eKLR
  • Wilson Njoroge Kamau v Nganga Muceru Kamau
    [2020] eKLR
  • Kasuve v Mwaani Investments Ltd & 4 Others
    [2004] 1 KLR 184
  • Wanja v Sakwa No 2
    [1984] KLR 254
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
  • Littledale v Liverpool College
    (1900) 1 Ch. 19, 21
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap. 22) and Order 37 Rule 7 of the Civil Procedure Rules, 2010

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, "Susan Nyambura Mburu v Agnes Muthoni Karaya [2021] KEELC 1240 (KLR)", Case Analysis (2021). Origination Summons dated 14th February 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1240/eng@2021-10-28

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