Charles Mwangi Kiiru &2 others v Boniface Maina Gichomo &another; [2021] KEELC 2693 (KLR)
The bottom line
#Three Kenyan brothers won land by adverse possession after 12 years of open occupation, and the buyer's title was cancelled.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is not res judicata because HCCC No. 365 of 1992 was dismissed for want of prosecution and was never heard and finally determined
Section 7 of the Civil Procedure Act requires that the former suit have been heard and finally decided between the same parties. DW1's evidence showed HCCC No. 365 of 1992 was dismissed on 27/7/2001 for want of prosecution. It was therefore not finally determined, and the res judicata plea fails.
Abatement of the prior suit
The abatement of the father's suit does not defeat the Plaintiffs' claims, which are brought in their own right and not on behalf of their father's estate
The Plaintiffs did not file suit on behalf of the estate of their father but on their own behalf, claiming adverse possession in their own right accrued from 1997, independent of their father's occupation. The abatement point is therefore moot.
Adverse possession
The Plaintiffs proved open, continuous and exclusive occupation from 1997, so their title by adverse possession accrued by 2009
The Plaintiffs entered the land with their father who purchased it in 1967; on his death in 1997 the permissive element fell away and time ran afresh against the estate of Gichomo. After 12 years, by 2009, adverse possession crystallised and the estate's title was extinguished, holding the land in trust for the Plaintiffs. The portions were definite and identifiable on the ground.
Bona fide purchaser for value without notice
The 2nd Defendant was not a bona fide purchaser because he purchased knowing of occupants and destroyed their crops; his title is cancelled
The 2nd Defendant admitted knowing the area and parties, procured Land Control Board consent in haste before executing the agreement, permitted Cyrus's wife to harvest maize and uprooted coffee. This conduct shows knowledge of occupation, so he took the title subject to the overriding interest, and under section 80 of the Land Registration Act the title is a candidate for cancellation.
Legal principles established
#- A permitted occupant's adverse possession time begins to run afresh when the permission ceases, here on the death of the Plaintiffs' father in 1997
- A transferee who purchases with knowledge of occupants acquires no better title, the land being encumbered by an overriding interest of adverse possession
Court orders
#- 1.Judgment entered for the Plaintiffs as prayed in the consolidated Originating Summonses
- 2.Declaration that the Plaintiffs' titles by adverse possession accrued in 2009 and that the estate of Gachomo held the suit land in trust for them
- 3.Cancellation of the 2nd Defendant's title to land parcel No. LOC.14/GAKURWE/314 under section 80 of the Land Registration Act
- 4.Costs of the suit to be borne by the Defendants jointly and severally
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (claim for adverse possession over land); not expressly cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Mwangi Kiiru &2 others v Boniface Maina Gichomo &another; [2021] KEELC 2693 (KLR)", Case Analysis (2021). E.L.C No. 98 of 2018 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2693/eng@2021-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.