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ELCDismissedELC No. 389 of 2017 (OS)· [2021] KEELC 2819 (KLR)

Maritha Wanjiku Njoroge v Mwangi Mwaura & 3 others [2021] KEELC 2819 (KLR)

Environment and Land Court
17 June 2021
4,089 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a 24-year adverse possession claim because the occupier only had six of the required twelve years on the land.

What this practically means

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Executive summary

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The substituted Plaintiff, widow and administrator of the late Njoroge Gitau, brought an amended Originating Summons seeking cancellation and consolidation of resultant titles from the original parcel Maragua/Ridge/91, a declaration that she was entitled to 3.25 Ha by adverse possession, extinguishment of the 1st Defendant's title, and registration of a portion in her favour. The 1st Defendant, brother of the deceased, contended the occupation was permissive; the 3rd and 4th Defendants claimed to be purchasers for value without notice. The court framed a single issue: whether the Plaintiff proved title by adverse possession. It first rejected the 1st Defendant's objection for failure to annex a title extract, distinguishing Kiprono Arap Soi and Titus Mutuku Kasuve because the green card was annexed and produced. On the merits, the court held time could not run from 1966 since the land belonged to the Settlement Fund Trustee, against whom adverse possession cannot be claimed. Time ran only from 1991, when the 1st Defendant was registered, to 1997, when the Land Disputes Tribunal suit was filed - a mere six years, short of the statutory twelve. The Plaintiff also failed to ascertain the acreage claimed, and her attempt to found the claim on customary trust in evidence, contrary to her pleadings, was disregarded. The 3rd and 4th Defendants' titles under Section 26 of the Land Registration Act were unimpeached. The suit was dismissed with costs to the 3rd and 4th Defendants.

Key legal issues

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01

Whether the omission of a copy of the extract of title from the Originating Summons rendered the suit incompetent under Order 37 Rule 7(2)

Holding

The omission was not fatal because the green card was annexed to the Supporting Affidavit and produced in evidence; the authorities relied on were distinguished.

Reasoning

Order 37 Rule 7(2) requires an extract of title to identify the land claimed with certainty. The Plaintiff annexed and produced a copy of the green card (Pexh. 1) and official searches of the resultant titles. The cases of Kiprono Arap Soi and Titus Mutuku Kasuve were distinguishable because in those cases no title extract or ascertainable acreage was produced at all.

p. 4
02

Whether adverse possession accrued in favour of the Plaintiff

Holding

No. Time could not run from 1966 while the land was under the Settlement Fund Trustee; it ran only from registration of the 1st Defendant in 1991 until the Land Disputes Tribunal suit in 1997, a period of six years, short of the statutory twelve.

Reasoning

The green card showed the land belonged to Settlement Fund Trustee as at 15/5/90 and adverse possession cannot be claimed against the government. The 1st Defendant was registered in 1991 per the Settlement Officer's letter. The 1997 Tribunal litigation interrupted time. The claimant also failed to ascertain the acreage claimed and the 3rd and 4th Defendants' titles stood unimpeached under Section 26 of the Land Registration Act.

p. 5
03

Whether the claim on customary trust, raised in evidence but not pleaded, could be sustained

Holding

No. Parties are bound by their pleadings and evidence at variance therewith must be disregarded.

Reasoning

The claim as pleaded was founded solely on adverse possession. The Plaintiff's attempt to introduce customary trust through testimony deviated from the pleadings and was disregarded per the IEBC v Mutinda Mule principle that parties are bound by their pleadings.

p. 5

Legal principles established

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  • No adverse possession can run against land held by the Settlement Fund Trustee as it is government land; time cannot be computed from occupation before transfer from the SFT.
  • Filing of suit before a Land Disputes Tribunal interrupts the running of time for adverse possession.
  • The claimant in an adverse possession suit bears the burden of proving a definite and identifiable acreage.
  • Evidence at variance with pleadings goes to no issue and must be disregarded.
  • A registered title under Section 26 of the Land Registration Act can only be impeached on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition.

Court orders

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  1. 1.The Plaintiff's case is dismissed
  2. 2.Costs in favour of the 3rd and 4th Defendants

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 7
  • Limitation of Actions Act (Cap 22)Section 17
  • Limitation of Actions Act (Cap 22)Sections 13, 16, 17 and 26
  • Limitation of Actions Act (Cap 22)Section 41
  • Civil Procedure RulesOrder 37 Rule 7(2)
  • Land Registration ActSection 26
  • Registered Land Act (repealed)

Cases cited (18)

  • Joseph Mwangi Munga v Duncan Kimani Njoroge
    [2020] eKLR
  • Wilson Njoroge Kamau v Nganga Muceru Kabura
    [2020] eKLR
  • Kiprono Arap Soi v Peter Murmumet Tompoi & Anor
    [2016] eKLR
  • Titus Mutuku Kasuve v Mwaani Investments Limited & 4 Others
    [2004] eKLR
  • Mbira v Gachuhi
    (2002) IEALR 137
  • Jandu v Kirpal & Another
    EA 225
  • Wambugu v Njuguna
    Civil Appeal No. 10 of 1992
  • Samuel Miki Waweru v Jane Njeri Richu
    C.A No. 122 of 2011 (UR)
  • Christopher Kioi & another v Winnie Mukolwe & 4 others
    [2018] eKLR
  • Z F Stoffberg NO & others v City of Cape Town
    (1325/2017) [2019] ZASCA 70
  • Grace Wairimu Sorora v Chaka Limited & 6 others
    [2017] eKLR
  • Kimani Ruchire v Swift Rutherford & Co. Ltd.
    [1980] KLR 10
  • Githu v Ndeete
    [1984] KLR 776
  • Johnson Kinyua v Simon Gitura Rumuri
    [2011] eKLR
  • Samuel Kipngeno Koech v Agnes Wambui Gitonga
    [2016] eKLR
  • Gitu v Ndungu & 2 Others
    (2001) KLR 149
  • Gerishon Muindi Baruthi v Willays Gatinku Mukobwa & another
    CA No. 98 of 1998
  • Independent Electoral and Boundies Commission & Another v Stephen Mutinda Mule & 3 Others
    [2014] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - original jurisdiction over adverse possession claims

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, "Maritha Wanjiku Njoroge v Mwangi Mwaura & 3 others [2021] KEELC 2819 (KLR)", Case Analysis (2021). ELC No. 389 of 2017 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2819/eng@2021-06-17

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