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ELCDismissedE.L.C No. 26 of 2020 (OS)· [2021] KEELC 2013 (KLR)

Anthony Irungu J. Kangethe & 2 others v Bernard Mwangi Waweru [2021] KEELC 2013 (KLR)

Environment and Land Court
14 September 2021
JKJ. G. Kemei
2,125 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a family land claim, ruling that living on land with the owner's permission can never ripen into ownership through adverse possession.

What this practically means

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Executive summary

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The three Plaintiffs, grandsons of the late Daniel Waweru Kibiru, brought an originating summons against the Defendant, a son of the original owner, claiming that they and their families had been in adverse possession of parcel LOC11/GAITEGA/522 for over 12 years and were entitled to half of it, seeking declaratory orders, an order for transfer of the half share (with the Deputy Registrar empowered to execute in default) and a permanent injunction. The Plaintiffs' case was that the Defendant held one acre of the suit land in trust for them, that the 1st Plaintiff had lived and built on the land for over 30 years, and that the 2nd and 3rd Plaintiffs cultivated it. The Defendant denied the trust and occupation, contending he inherited the land absolutely in 1993 and that the Plaintiffs' fathers each received their own land. Six witnesses testified for the Plaintiffs and four for the Defendant. The court framed a single issue: whether the Plaintiffs proved title by adverse possession. Relying on Mbira v Gachuhi, Wambugu v Njuguna and Samuel Miki Waweru v Jane Njeri Richu, the court held that possession was permissive, that no dispossession or discontinuance of the Defendant's possession was proved, and that a trust claim raised only in submissions, not pleaded, could not be entertained. The suit was dismissed with each party bearing their own costs given their family relationship.

Key legal issues

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01

Whether the Plaintiffs proved title by adverse possession over LOC11/GAITEGA/522

Holding

The claim failed. The 1st Plaintiff's occupation was permissive; there was no dispossession or discontinuance of the Defendant's possession; the 2nd and 3rd Plaintiffs did not reside on the land.

Reasoning

The court found the 1st Plaintiff constructed a house and cultivated the land but with the Defendant's permission, which ceased only in 2018. The site survey showed two homesteads side by side, negating exclusive adverse occupation. No evidence of dispossession of the registered proprietor was led. The trust claim was raised only in submissions and was neither pleaded nor proved.

p. 3
02

Whether the Defendant held the additional acre in trust for the Plaintiffs

Holding

The trust claim was not entertained because it was neither pleaded nor proved.

Reasoning

The Plaintiffs argued in submissions that the Defendant held the title in trust. The court held that submissions are only a summation of a party's case and cannot be taken as pleadings, so the unpleaded trust claim could not succeed.

p. 3

Legal principles established

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  • A claimant seeking title by adverse possession must prove non-permissive, non-consensual, actual, open, notorious, exclusive and adverse use for the statutory period without interruption
  • The adverse possessor must prove that the true owner has been dispossessed or has discontinued possession; mere occupation and use is insufficient
  • Possession with the permission of the owner does not become adverse until the permission is ended
  • Submissions cannot substitute for pleadings; claims not pleaded cannot be entertained via submissions

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.Each party to meet their own costs of the suit

Authorities

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Legislation

  • Limitation of Actions Act (implied via 'statute of limitations')

Cases cited (4)

  • Mbira –v- Gachuhi
    (2002) IEALR 137
  • Wambugu v Njuguna
    (1983) KLR 172
  • Samuel Miki Waweru v Jane Njeri Richu
    Civil Appeal No. 122 of 2001, (UR)
  • Jandu v Kirpal
    [1975] EA 225
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (originating summons)

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, "Anthony Irungu J. Kangethe & 2 others v Bernard Mwangi Waweru [2021] KEELC 2013 (KLR)", Case Analysis (2021). E.L.C No. 26 of 2020 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2013/eng@2021-09-14

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