Maritha Wanjiku Njoroge v Mwangi Mwaura & 3 others [2021] KEELC 2819 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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)
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.
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.
Whether adverse possession accrued in favour of the Plaintiff
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.
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.
Whether the claim on customary trust, raised in evidence but not pleaded, could be sustained
No. Parties are bound by their pleadings and evidence at variance therewith must be disregarded.
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.
Legal principles established
#- 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
#- 1.The Plaintiff's case is dismissed
- 2.Costs in favour of the 3rd and 4th Defendants
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - original jurisdiction over adverse possession claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.