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ELCAllowedOriginating Summons dated 18.9.2018 (Meru ELC)· [2021] KEELC 1991 (KLR)

Henry Kathiora Muratha & another v Florence Gacheri Muriungi (Sued as the administrator of the estate of William Peter Muriungi (Deceased) [2021] KEELC 1991 (KLR)

Environment and Land Court
22 September 2021
2,522 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land buyers who stayed on sold land for over 12 years after their agreement lapsed became its rightful owners through adverse possession.

What this practically means

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Executive summary

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The two plaintiffs filed an Originating Summons under Section 38 of the Limitation of Actions Act and Order 37 rule 7 of the Civil Procedure Rules seeking to be registered as proprietors of two subdivisions carved out of parent parcel NYAKI/KITHOKA/1973 by adverse possession. They claimed that on 8.6.2002 they bought ½ acre from the late William Peter Murungi, paid the price (with Kshs. 30,000 deferred to title processing), took possession, developed the land, and have occupied it openly and continuously since 2002. The defendant, the seller's widow and administratrix, opposed, arguing the purchase price was unpaid, possession was with the seller's consent, and adverse possession cannot co-exist with a purchaser's claim. The defendant did not testify; her case proceeded by way of her replying affidavit. The court framed one issue: whether the plaintiffs had acquired title by adverse possession. Applying Mtana Lewa and Wambugu v Njuguna, the court held that the sale agreement required completion by 31.8.2002 and, no amended agreement existing, the permissive occupation lapsed on 1.9.2002, whereafter the plaintiffs' possession became adverse. Titles issued to the deceased in 2008 and the defendant's succession cause, which distributed the parcels to herself and her sons, showed non-recognition of the plaintiffs. Over twelve years of continuous occupation having elapsed, the plaintiffs' claim was allowed: they were declared entitled to ¼ acre each, ordered registered as sole proprietors, the defendant was directed to execute transfer instruments (with the Deputy Registrar empowered to sign in default), and the defendant was ordered to pay the costs. The judgment was delivered electronically pursuant to COVID-19 practice directions.

Key legal issues

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01

Whether the plaintiffs acquired title by adverse possession

Holding

Yes - their occupation ceased to be permissive after 31.8.2002 when the sale agreement lapsed, and they remained in open, continuous and notorious possession for over 12 years, denying the plaintiffs' interests through the succession cause.

Reasoning

The court applied the Mtana Lewa definition of adverse possession and the Wambugu v Njuguna principle that a purchaser's possession becomes adverse once the contract is repudiated or terminates. The 8.6.2002 agreement required completion by 31.8.2002 and no amended agreement existed, so permission lapsed by 1.9.2002. Titles issued to the deceased in 2008 showed no intention to transfer. The defendant's 2010 succession petition, under which the parcels were awarded to her and her sons, evidenced non-recognition of the plaintiffs' interests.

p. 3

Legal principles established

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  • Where a purchaser entered with the seller's consent under a sale agreement that has lapsed or been terminated, adverse possession runs from the date the permission/contract ceased.
  • Adverse possession requires possession that is not by force, stealth or licence, is continuous, open and adverse for twelve years.

Court orders

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  1. 1.Declaration that HENRY KATHIORA MURATHA and JULIUS BUNDI RIMBERE have become entitled by adverse possession to ¼ acres each of parcels no. NYAKI/KITHOKA/xxxx & xxxx respectively
  2. 2.Order for HENRY KATHIORA MURATHA to be registered as sole proprietor of parcel NYAKI/KITHOKA/xxxx and JULIUS BUNDI RIMBERE as sole proprietor of parcel NYAKI/KITHOKA/xxxx by the Land Registrar, Meru Central District
  3. 3.The Defendant to execute all requisite transfer instruments, and in default the Deputy Registrar empowered to execute the transfer instruments on her behalf
  4. 4.The defendant shall bear the costs of this suit

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure RulesOrder 37 rule 7
  • Civil Procedure ActSections 1A & 1B
  • Land Control ActSection 8(1)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (13)

  • Samuel Miki Waweru V Jane Njeri Richu
    [2007] eKLR
  • In the matter of ascertainment of ownership of parts of L.R NO. 3036/5
    [2012] eKLR
  • David Kiriinya Michael v Jane Rose Kinya
    [2018] eKLR
  • Joseph Evans Okwany & Another V Roslida Mbaja Malawo
    (2018) eKLR
  • James Maina Kinya V Gerald Kwendaka
    [2018] eKLR
  • Wambugu V Njuguna
    (1983) KLR 172
  • John Ndungu Kipsoi V Samwuel Chepkulul & Another
    [2018] eKLR
  • Mtana Lewa V Kahindi Ngala Mwagandi
    [2015] eKLR
  • Mageta Enterprises Limited V Tilak Company Limited
    [2020] eKLR
  • Gabriel Mbui V Mukindia Manya
    [1993] eKLR
  • Wilfred Kegonye Babu v Henry Mose Onuko
    [2019] eKLR
  • Erick Chepkwony Aengwo V Jonathan Rutto Kibiesang
    [2013] eKLR
  • Waweru v Richu
    2007 1 EA
Jurisdiction invoked
Section 38 of the Limitation of Actions Act and Order 37 rule 7 of the Civil Procedure Rules

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, "Henry Kathiora Muratha & another v Florence Gacheri Muriungi (Sued as the administrator of the estate of William Peter Muriungi (Deceased) [2021] KEELC 1991 (KLR)", Case Analysis (2021). Originating Summons dated 18.9.2018 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1991/eng@2021-09-22

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