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ELCAllowedOriginating Summons dated 25/03/2019, Murang'a Environment and Land Court· [2021] KEELC 3129 (KLR)

Bedan Maina Njoroge v Patrick Ngaruiya & another [2021] KEELC 3129 (KLR)

Environment and Land Court
26 May 2021
JKJ. G. Kemei
3,451 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A buyer who occupied purchased land openly for over 12 years won ownership through adverse possession, defeating the sellers' heirs.

What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons dated 25/03/2019 seeking a declaration that the title to land parcel LOC.1/NDUNYU CHEGE/172 (2 acres) had been extinguished by adverse possession and an order directing the Murang'a Land Registrar to register him as absolute proprietor. He contended he bought the land in 1982 from the late David Njoroge, son of the then registered owner Ibrahim Ruirie Kimari, and had occupied it openly, continuously and exclusively for over 37 years, planting tea, fencing and building homes. The Defendants, grandchildren of Ibrahim registered as administrators and trustees of the estate following succession proceedings concluded in 2017, denied the sale, contended their father lacked capacity to sell unconsented ancestral land, argued the claim lay only against the deceased registered owner, and asserted the Thika CMCC suit interrupted limitation. They also raised a preliminary objection, which was disposed of concurrently with the main suit. Applying Mukisa Biscuits and IEBC v Cheperenger, the court dismissed the preliminary objection as raising factual issues requiring evidence. On the merits, the court found the Plaintiff's possession peaceful, open, continuous and hostile from 1982, that time ran from payment of the purchase price, and that by 1994 title by adverse possession had accrued, extinguishing the Defendants' inherited title; the filing of the Thika suit could not revive it. The Originating Summons was allowed with costs to the Plaintiff.

Key legal issues

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01

Whether the Preliminary Objection dated 24/05/2020 merited upholding

Holding

Dismissed because it raised factual matters requiring evidence, not pure points of law

Reasoning

Applying Mukisa Biscuits and IEBC v Cheperenger, a preliminary objection must be a settled, crisp point of law pleaded or arising by clear implication. The Defendants' grounds, such as whether they are trustees for their siblings and the validity of the sale agreement, required calling and analyzing evidence and were not premised on admitted facts. The objection was therefore unmerited.

p. 2
02

Whether the Plaintiff proved adverse possession of the suit land

Holding

Yes; the Plaintiff was in open, continuous, exclusive and hostile occupation from 1982, exceeding twelve years

Reasoning

The Plaintiff bought the land in 1982, took immediate possession, planted tea, fenced it and built houses. The Defendants conceded he occupied the land since 1983 without eviction. Time ran from payment of the purchase price in 1982 and title by adverse possession accrued by 1994, before the Defendants acquired any interest, so their inherited title was extinguished.

p. 4
03

Whether the filing of the Thika CMCC suit interrupted the running of adverse possession

Holding

No; filing of suits does not stop adverse possession once the title has been extinguished

Reasoning

The Defendants argued the Thika suit interrupted limitation. The court held that by the time the Thika suit was purportedly filed, the Defendants' title by inheritance was already extinguished in 1994, and cited Francis Mungai Kimani v Ngendo Kibogoro that filing of cases does not necessarily stop adverse possession.

p. 4

Legal principles established

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  • A claim for adverse possession can be founded on a sale agreement for land, and the limitation period starts to run after payment of the last installment of the purchase price
  • Adverse possession may lie against a deceased registered owner because administration dates back to death and prescription affects predecessors in title
  • Once twelve years of adverse possession have run, subsequent filing of suits does not revive or interrupt the extinguished title

Court orders

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  1. 1.The Originating Summons dated 25/03/2019 is allowed
  2. 2.Costs of the suit awarded to the Plaintiff against the Defendants

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 16
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 18
  • Limitation of Actions ActSection 38
  • Land ActSection 7
  • Land Registration Act, 2012Section 28(h)

Cases cited (17)

  • Mukisa Biscuits Manufacturing Co. Ltd –vs- West End Distributors Ltd
    (1969) EA 696
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    [2015] eKLR, Supreme Court Civil Application No. 36 of 2014
  • Christopher Kioi & Another V Winnie Mukolwe & 4 others
    [2018] eKLR
  • Renom Agency Limited v Muthoga Gaturu & Company Advocates & 3 others
    [2016] eKLR
  • Samuel Kihamba vs. Mary Mbaisi
    [2015] eKLR
  • Mate Gitabi vs Jane Kabubu Muga alias Jane Kaburu Muga & 3 Others
    [2017] eKLR
  • Wanyoike v Kahiri
    [1979]
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Kasuve vs Mwani Investments Ltd & 4 others
    1 KLR
  • Wambugu vs Njuguna
    (1993) LCR 173
  • Mtana Lewa –v Kahindi Ngala Mwangandi
    (2005) eKLR
  • Z F Stoffberg NO & others v City of Cape Town
    (1325/2017) [2019] ZASCA 70
  • Titus Kigoro Munyi v Peter Mburu Kimani
    Nyeri CA No. 28 of 2014 [2015] eKLR
  • Peter Thuo Kairu – v- Kuria Gacheru
    (1988) 2 KLR 111
  • Samuel Kariuki Mwangi & another v Njuru Mwangi
    [1986] eKLR
  • Sisto Wambugu v Kamau Njuguna
    CA NO. 10 OF 1982 [1983] eKLR
  • Francis Mungai Kimani v Ngendo Kibogoro
    [1988] eKLR
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act, sections 7, 17 and 38, and Section 28(h) of the Land Registration Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bedan Maina Njoroge v Patrick Ngaruiya & another [2021] KEELC 3129 (KLR)", Case Analysis (2021). Originating Summons dated 25/03/2019, Murang'a Environment and Land Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3129/eng@2021-05-26

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