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ELCAllowedOriginating Summons dated 17th January 2014, amended 16th February 2018· [2021] KEELC 2758 (KLR)

Raphael Kagali Muhindi v Mary Jerotich Misoi [2021] KEELC 2758 (KLR)

Environment and Land Court
24 June 2021
3,649 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 ruled that a buyer who occupied land for over 12 years after paying the final instalment became its lawful owner through adverse possession.

What this practically means

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Executive summary

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By an originating summons dated 17th January 2014 and amended on 16th February 2018, the plaintiff claimed that he had acquired 0.83 Hectares comprised in land parcel NANDI/CHEBILAT/129 (measuring 3.8 Hectares) by adverse possession, seeking to be registered as proprietor in place of the defendant, subdivision of the land, a discharge of charge by the 2nd defendant, and execution of instruments by the Deputy Registrar in default. The plaintiff testified that the defendant was registered on 25th June 1977 and that he bought a portion and entered occupation on 17th August 1995 under a sale agreement, completing payment of the purchase price on 10th October 1999. Two witnesses corroborated his occupation since 1995. The defendant admitted selling land but insisted the portion sold was 0.4 acres, not 0.83 Hectares, disputed the peaceability of the occupation, challenged the sketch plan as undated and unapproved, and offered to subdivide and transfer 0.4 acres, citing cost of survey as the obstacle. The court identified the elements of adverse possession, holding that possession must be adequate in continuity, publicity and extent and adverse to the registered owner. It found it undisputed that the plaintiff bought a portion and entered occupation in 1995, and that limitation began running on 10th October 1999 when the last instalment of the purchase price was paid, in line with Wanyoike v Kahiri. That period exceeded 12 years. The defendant's contention that a dispute two to three years before suit interrupted possession did not displace the finding of continuous occupation. Allowing the summons as prayed, the court held the plaintiff had proved his claim for adverse possession and awarded costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff proved adverse possession of 0.83 Hectares of NANDI/CHEBILAT/129

Holding

The plaintiff entered the land on 17th August 1995 under a sale agreement, completed payment of the purchase price on 10th October 1999, and has remained in continuous, open possession for over 12 years; the defendant's title to the portion occupied has been extinguished

Reasoning

The court found it undisputed that the plaintiff bought a portion of the property on 17th August 1995 and entered occupation. The last instalment of the purchase price was paid on 10th October 1999, which is when time began running for adverse possession purposes. That period exceeds 12 years. The plaintiff constructed a house and other structures, and the defendant never interrupted the possession or sought eviction, only disputing the acreage and offering to transfer 0.4 acres.

p. 6
02

The date from which limitation runs in a purchaser's claim for adverse possession

Holding

Where the claimant is a purchaser, time begins to run when the last instalment of the purchase price is paid

Reasoning

Relying on Wanyoike v Kahiri, the court held that in a purchase scenario limitation starts on payment of the last instalment. The plaintiff paid the final instalment on 10th October 1999, so the 12-year period under sections 7 and 13 of the Limitation of Actions Act expired around 2011, well before the suit was filed in 2014.

p. 6
03

Disputed acreage: 0.83 Hectares claimed versus 0.4 acres offered by the defendant

Holding

The court accepted the plaintiff's evidence of the sale agreement for 0.83 and found the defendant had partly admitted the sale, disputing only the acreage

Reasoning

The court observed that the defendant admitted selling land to the plaintiff and being ready to transfer 0.4 acres, the only obstacle being the cost of survey and subdivision. The plaintiff produced the sale agreement and witnesses confirmed occupation since 1995. The court found the agreement was for a portion measuring 0.83 and that the plaintiff has been in possession of the suit property from then to date.

p. 6

Legal principles established

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  • In a purchase scenario, the period of limitation for adverse possession starts to run on the date of payment of the last instalment of the purchase price
  • To prove title by adverse possession, possession must be adequate in continuity, in publicity and in extent and adverse to the registered owner

Court orders

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  1. 1.The plaintiff's claim for adverse possession is allowed as prayed with costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13(1)
  • Limitation of Actions ActSections 37 and 38(1) and (2)
  • Limitation of Actions ActSection 18(4)
  • Land Registration Act, 2012Section 28(h)
  • Registered Land Act, Cap 300 (repealed)Section 30(f)
  • Civil Procedure Rules, 2010Order 37 Rule 7
  • Judicature ActSection 3
  • Law of Contract ActSection 3(3)
  • Land ActSection 38(2) as amended

Cases cited (17)

  • Kimani Ruchite v Swift Rutherfords
    (1980) KLR 10
  • Mwangi Gitau v Livingstone Ndeete
    (1980) eKLR
  • Gatimu Kinguru v Muya Gathangi, High Court Civil Case No 176 of 1973
  • Joseph Gachumi Kiritu v Lawrence Munyambu Kabure
    (1996) eKLR
  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri
    (2014) eKLR
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
  • Peter Mbiri Michuki v Samuel Mugo Michuki
    (2014) eKLR
  • Wambugu vs Njuguna
    (1983) KLR 173
  • Sammy Likuvi Adiema vs Charles Shannvati Shishikani
    (2014) eKLR
  • Kasuve vs Mwaani Investments Limited & 4 Others
    1 KLR 184
  • Nzamate Wandozu vs Esther Vioki Kibunja
    (2013) eKLR
  • Ahmed Abdulkarim & Another vs Members for Land and Mines & Another
    [1958] EA
  • Maweu vs Liu Ranching and Farming Cooperative Society
    1985 KLR 430
  • Benjamin Kamau Murma & Others vs Gladys Njeri
    CA No. 213 of 1996
  • Mtana Lewa v Kahindi Ngalia Mwagandi
    [2015] eKLR
  • Wanyoike vs Kahiri
    (1979) KLR
  • Harrison Oyari & 588 Others vs Mareo Oriambu & 22 Others
    (2016) eKLR
Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules, 2010 and Section 38(1) of the Limitation of Actions Act (Cap 22) - application to the High Court for an order that a person entitled by adverse possession be registered as proprietor

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, "Raphael Kagali Muhindi v Mary Jerotich Misoi [2021] KEELC 2758 (KLR)", Case Analysis (2021). Originating Summons dated 17th January 2014, amended 16th February 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2758/eng@2021-06-24

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