Kenneth Nyakundi Makori v Ruth Wangari Mwangi & 2 others [2021] KEELC 3388 (KLR)
The bottom line
#A Kenyan land buyer who claimed ownership by adverse possession lost because he could not prove he knew of and dispossessed the registered owner for 12 years.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff has proved a claim of adverse possession and therefore entitled to the orders sought
Key legal issues
#Whether the Plaintiff proved adverse possession of a portion of Ruiru/Ruiru East Block 2/4118
The Plaintiff failed to prove adverse possession; the suit was dismissed entirely
The court applied Section 7 and Section 38 of the Limitation of Actions Act and the principles in Wambugu v Njuguna, requiring proof of dispossession or discontinuance of possession by the title holder for the statutory 12-year period. The Plaintiff's occupation alleged from 2004 was permissive under a purchase from a third party whose certificates of ownership did not identify the suit parcel as the mother title. The Plaintiff did not know of the 1st Defendant's ownership until 2018 and could not have dispossessed an unknown owner; he also failed to establish the acreage of the portion claimed.
Whether the Plaintiff identified a definite portion of land to which adverse possession could attach
The Plaintiff failed to identify a definite and clear portion
The certificates of ownership issued by Matanya Ndururumo Women Group gave plot numbers in Block 3 without acreage and did not link the plots to Ruiru/Ruiru East Block 2/4118. The court could not confirm with certainty that the plots purchased in 2004 were portions of the suit property, nor that the claimed 0.06689 ha corresponded to the portion occupied.
Legal principles established
#- A claimant in adverse possession must prove possession, dispossession and discontinuance of possession by the registered owner for a continuous period of 12 years
- A claimant cannot dispossess an owner whose ownership he did not know of; the rightful owner must know that he is ousted
- Mere occupation of land is not proof of dispossession of the registered owner
Court orders
#- 1.The Originating Summons dated 5th November 2019 is dismissed entirely with costs to the Defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under Section 38(1) and (2) of the Limitation of Actions Act for an order that a claimant be registered as proprietor by adverse possession
Relief refused
#Order that the Plaintiff is entitled to a portion measuring approximately 0.06689 HA of the suit parcel by adverse possession
Plaintiff failed to prove dispossession of the registered owner or continuous adverse occupation for over 12 years
Declaration that the portion is held in trust for the Plaintiff
Claim of adverse possession not proved on a balance of probabilities
Cancellation of the subdivision and rectification of the register to register the Plaintiff as owner
No sufficient evidence that the Plaintiff occupied a definite identifiable portion of the 1st Defendant's parcel from 2004
Transfer of the whole property to the Plaintiff's name and execution of transfer documents by the Deputy Registrar
Prayer contradicted the pleaded 0.06689 ha claim; no proof of dispossession of the 1st Defendant
Permanent injunction restraining the Defendants from interfering with the suit property
Suit dismissed entirely
Registration of a caution in favour of the Plaintiff
Suit dismissed entirely
Costs
Costs of the Originating Summons awarded to the Defendants - the Originating Summons 'is dismissed entirely with costs to the Defendants'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the above reasons, the Court finds and holds that the Plaintiff has failed to prove his claim as contained in the Originating Summons dated 5th November 2019, and consequently the said Originating Summons is dismissed entirely with costs to the Defendants.
For the Plaintiff herein to succeed in his claim for Adverse Possession, he must prove his possession, dispossession and discontinuance of possession by the 1st Defendant herein for a continuous period of 12 years.
Certainly the Plaintiff cannot claim to have dispossessed an owner that he did not know of.
It is not clear that the Plaintiff herein is claiming a definite and clear portion of land from the suit property that is owned by the 1st Defendant.
Issues in the judgment
#Internal inconsistency in the claim: the Plaintiff pleads a portion of approximately 0.06689 Ha yet prayer (d) seeks transfer of the entire title, which the court noted
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Nyakundi Makori v Ruth Wangari Mwangi & 2 others [2021] KEELC 3388 (KLR)", Case Analysis (2021). Originating Summons dated 5th November 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3388/eng@2021-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.