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ELCAllowedE.L.C No. 98 of 2018 (OS)· [2021] KEELC 2693 (KLR)

Charles Mwangi Kiiru &2 others v Boniface Maina Gichomo &another; [2021] KEELC 2693 (KLR)

Environment and Land Court
30 June 2021
5,753 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This consolidated judgment (Murang'a ELC Nos. 96, 97 and 98 of 2018, with ELC 98 of 2018 as lead file) concerns claims for adverse possession by three brothers over portions of land parcel LOC.14/GAKURWE/314. The Plaintiffs asserted that their father, Kiiru Waithaka, purchased the land from Gichomo Kahu in 1967, was put in possession, and in 1996 allocated equal portions to his three sons, who farmed the land openly until 2019 when the 2nd Defendant, a purchaser from the 1st Defendant, entered and destroyed crops. The 1st Defendant raised res judicata and abatement, relying on the father's failed suit, HCCC No. 365 of 1992, dismissed for want of prosecution. The court held the suit was not res judicata as the prior suit was never heard and finally determined, and the abatement point was moot since the Plaintiffs sued in their own right. On the evidence, including the certified green card and admissions in the 1992 pleadings, the court found the purchase and the Plaintiffs' occupation proved. Time for adverse possession began running in 1997 upon the father's death, crystallising by 2009, extinguishing the estate's title, which was held in trust for the Plaintiffs. The 2nd Defendant's defence of bona fide purchase failed because he bought with knowledge of occupation and destroyed crops; his title, encumbered by an overriding interest, was cancelled under section 80 of the Land Registration Act. Judgment was entered for the Plaintiffs as prayed, with costs against the Defendants jointly and severally.

Key legal issues

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01

Res judicata

Holding

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

Reasoning

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.

p. 4
02

Abatement of the prior suit

Holding

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

Reasoning

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.

p. 4
03

Adverse possession

Holding

The Plaintiffs proved open, continuous and exclusive occupation from 1997, so their title by adverse possession accrued by 2009

Reasoning

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.

p. 6
04

Bona fide purchaser for value without notice

Holding

The 2nd Defendant was not a bona fide purchaser because he purchased knowing of occupants and destroyed their crops; his title is cancelled

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Judgment entered for the Plaintiffs as prayed in the consolidated Originating Summonses
  2. 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. 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. 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

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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, "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.