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ELCPartially AllowedOriginating Summons dated 24th January, 2020· [2021] KEELC 1713 (KLR)

Sammy Ngugi Karemeri & 11 others v Kanji Devji & another [2021] KEELC 1713 (KLR)

Environment and Land Court
7 October 2021
1,707 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that a family who occupied and paid rates on land for over 50 years won ownership, but only the leasehold title the previous owner actually held.

What this practically means

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Executive summary

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The plaintiffs, members of a group known as Akiba Haiozi, moved the court by Originating Summons dated 24th January 2020 claiming that they had been in continuous, open and adverse possession of parcel L.R 519/7/XXV I.R. 1677, measuring 0.11478 of an acre in Nakuru, for over twelve years. They pleaded that in 1969 the group's chairman agreed to purchase the land from the defendants' representatives, the defendants left the title with the joint advocates but never executed the transfer, and the group took possession in 1969, constructed buildings and paid rates to the County Government of Nakuru. Served by substituted service, the defendants neither entered appearance nor responded, and the suit proceeded unopposed on affidavit evidence and written submissions. The court applied Sections 7, 13, 17 and 38 of the Limitation of Actions Act and Court of Appeal authority, holding that the combined effect of those provisions extinguishes a registered proprietor's title after twelve years of adverse possession, and that the burden lies on the possessor to prove occupation that is without force, secrecy or evasion. Finding the uncontested evidence proved possession since 1969, the court held that the defendants' failure to complete the sale or regain possession rendered the plaintiffs' possession adverse. The court declared the defendants' title extinguished, declared the plaintiffs entitled to be registered, but limited the relief to the leasehold interest the defendants actually held - the remainder of a 99-year lease running from 1st January 1926 to 1st January 2025 - rather than the absolute proprietorship sought. The Deputy Registrar was authorized to execute the requisite documents if the defendants defaulted. Because the defendants did not resist the suit, the court made no order as to costs.

Key legal issues

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01

Whether the plaintiffs established continuous, open and adverse possession for over 12 years

Holding

Yes - the uncontested evidence of possession since 1969, construction of buildings and payment of rates proved adverse possession

Reasoning

The defendants entered no appearance and filed no response, so the plaintiffs' sworn evidence stood wholly uncontested. The court accepted that possession since 1969 was continuous, open, peaceful and uninterrupted, and that the defendants' failure to complete the 1969 sale transaction or regain possession rendered the possession adverse. The certified copy of title confirmed the defendants as registered proprietors. Possession in excess of 12 years entitled the plaintiffs to the remainder of the leasehold term.

p. 3
02

Whether the defendants' title was extinguished and the plaintiffs entitled to registration under Section 38 of the Limitation of Actions Act

Holding

Yes - the defendants' title was extinguished after 12 years of adverse possession, but the plaintiffs acquire only the leasehold interest held by the defendants

Reasoning

Relying on Sections 7, 13, 17 and 38 of the Limitation of Actions Act and Court of Appeal authority, the court held that a registered proprietor who fails to recover land within 12 years of uninterrupted adverse occupation loses title. However, the plaintiffs could only acquire the leasehold interest the defendants held, not absolute title as they sought; the court tailored the relief accordingly, declaring them entitled to be registered as lessees for the remainder of the 99-year lease.

p. 3

Legal principles established

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  • The combined effect of sections 7, 13 and 17 of the Limitation of Actions Act is to extinguish the registered proprietor's title in favour of an adverse possessor after 12 years of adverse possession
  • The burden of proving adverse possession lies on the adverse possessor, who must show occupation that is nec vi, nec clam, nec precario - without force, secrecy or evasion - and that is continuous and uninterrupted
  • A person entering under a sale that was never completed by the seller's execution of a transfer, whose possession continues, holds adversely once the seller fails to complete the transfer or regain possession
  • An adverse possessor acquires only the title held by the registered proprietor - where that title is leasehold, the possessor acquires the remainder of the leasehold term, not absolute title

Court orders

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  1. 1.Declaration that the plaintiffs have been in continuous open and adverse possession of Land Office Number 519/7/XXV I.R. 1677 measuring 0.11478 of an acre for a period in excess of twelve (12) years
  2. 2.Declaration that the defendants' title to the said parcel has been extinguished as a result of the plaintiffs' continuous, open and adverse possession
  3. 3.Declaration that the plaintiffs are entitled to be registered as lessees in respect of the remainder of the term of the lease over the parcel
  4. 4.In default of the defendants transferring the land by signing all requisite documents, the Deputy Registrar is authorized to execute all such documents as may be necessary for registration of the plaintiffs as lessees
  5. 5.Clarification that the interest acquired by the plaintiffs is a leasehold title for the remainder of the term of 99 years from 1st January 1926 to 1st January 2025
  6. 6.No order as to costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSections 7, 13, 17 and 38

Cases cited (5)

  • Benard Otieno Momanyi v Paul Ogango Ogada
    [2020] eKLR
  • Ngenda Investment Rural Sacco Ltd v Suraj Kunvar Pratapsingh Parmar & Another
    [2020] eKLR
  • Wines & Spirits Kenya Limited & another v George Mwachiru Mwango
    [2018] eKLR
  • Benjamin Kamau Murima & Others vs. Gladys Njeri
    C A No. 213 of 1996
  • Wanyoike Gathure v/s Berverly
    (1965) EA 514
Jurisdiction invoked
Sections 7, 13, 17 and 38 of the Limitation of Actions Act (Cap 22) and the court's original jurisdiction to order registration of adverse possessors under Section 38

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, "Sammy Ngugi Karemeri & 11 others v Kanji Devji & another [2021] KEELC 1713 (KLR)", Case Analysis (2021). Originating Summons dated 24th January, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1713/eng@2021-10-07

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