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ELCAllowedOriginating Summons dated 20.3.2019· [2021] KEELC 3644 (KLR)

Joseph Kiama Gachungi v Wilfred Githinji Wamai (Sued as the administrator of the estate of Tabitha Wanjiru Mwithimbu alias Wanjiru M’mwithimbu) [2021] KEELC 3644 (KLR)

Environment and Land Court
21 April 2021
1,585 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan buyer who occupied land for 21 years without Land Control Board consent won ownership of two acres through adverse possession.

What this practically means

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Executive summary

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By Originating Summons dated 20.3.2019, the plaintiff claimed entitlement to 2 acres out of parcel KIRIMARA/KITHITHINA/BLOCK 1/71 by adverse possession. He purchased the 2 acres from the deceased, Tabitha Wanjiru, by agreement dated 9th May 2000 for Kshs. 195,000, paying Kshs. 130,000, and took possession, fencing the portion and erecting permanent and semi-permanent buildings. No Land Control Board consent for the transfer was obtained, the transaction becoming void; the deceased died before transfer. The defendant, administrator of the estate, opposed the suit, contending the agreement allowed occupation of only 0.5 acres and that a restriction placed by Doris Nkirote Kimathi prevented distribution of the estate. The court framed the single issue of whether the plaintiff had acquired title to 2 acres by adverse possession. Applying Wambugu v Njuguna and Erick Chepkwony Aengwo, it held that where a controlled transaction becomes void for lack of consent, the vendor's permission is terminated by operation of law and possession becomes adverse from the date the transaction became void, here November 2000, six months after the agreement. The defendant's cross-examination admission confirmed occupation of two acres, giving 21 years of possession. Relying on Section 2(1) of the Law Reform Act and Mate Gitabi, the court held the administrator was properly sued and adverse possession could run against a deceased's estate. Judgment was entered for the plaintiff: a declaration of ownership of two acres by adverse possession, an order for registration, the two acres to be excised from the portion fronting the Nanyuki road, authority for the defendant (or failing him, the Deputy Registrar) to sign transfer documents, discharge of any subsisting restriction, with each party bearing their own costs.

Key legal issues

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01

When time begins to run for adverse possession where a purchaser entered under a sale agreement that became void for lack of Land Control Board consent

Holding

Time runs from the date the transaction became void, being six months from the date of the agreement (November 2000)

Reasoning

The agreement was dated 9.5.2000 and consent application made on 15.5.2000, but no consent was obtained. The consent availed by the plaintiff was for subdivision and dated 9.12.1999. Since a controlled transaction without consent becomes void after six months, the transaction became void in November 2000 and limitation ran from that date, giving the plaintiff 21 years of possession.

p. 2
02

Whether adverse possession can be claimed against the estate of a deceased registered owner and whether the administrator was properly sued

Holding

Yes; the defendant as administrator was properly sued, causes of action surviving to the estate under Section 2(1) of the Law Reform Act

Reasoning

The court relied on the Law Reform Act providing that causes of action subsisting against or vested in a deceased person survive for the benefit of his estate, and on the Mate Gitabi decision holding that open occupation inconsistent with the rights of the estate grounds adverse possession irrespective of when letters of administration were taken out.

p. 2
03

Whether the plaintiff proved factual possession of two acres for the limitation period

Holding

Yes; 21 years of open possession of two acres established, corroborated by the defendant's admission

Reasoning

The defendant admitted in cross-examination that the plaintiff occupies two acres on the suit land. Time running from November 2000, the plaintiff established the requisite twelve years' possession of the two acres, exceeding the statutory period.

p. 2

Legal principles established

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  • A purchaser's possession under a contract of sale becomes adverse only once the contract is repudiated or becomes void
  • Where a controlled transaction becomes void under Section 6(1) of the Land Control Act for lack of consent, the vendor's permission is terminated by operation of law and continued possession becomes adverse from the time the transaction becomes void
  • Adverse possession may be claimed against the property of a deceased person notwithstanding delay in taking out letters of administration

Court orders

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  1. 1.A declaration that the plaintiff has acquired ownership of two (2) acres out of land parcel no. L.R. No. KIRIMARA/KITHITHINA/BLOCK 1/71 through adverse possession
  2. 2.An order for the plaintiff to be registered as the proprietor of two (2) acres to be excised from Land parcel no. L.R. No. KIRIMARA/KITHITHINA/BLOCK 1/71
  3. 3.The two acres to be hived from the portion fronting the Nanyuki road
  4. 4.The defendant, as legal representative of the estate, directed and authorized to sign all requisite documents to facilitate registration; in default, the Deputy Registrar authorized to sign such documents
  5. 5.Any subsisting order of inhibition, injunction, caution or restriction on the suit land discharged to facilitate implementation of the judgment
  6. 6.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Land Control ActSection 6(1)
  • Law Reform ActSection 2(1)

Cases cited (6)

  • Wambugu v. Njuguna
    [1983] KLR 172
  • Wilfred Kegonye Babu v Henry Mose Onuko
    [2019] eKLR
  • Erick Chepkwony Aengwo V Jonathan Rutto Kibiesang
    [2013] eKLR
  • Waweru v Richu
    2007 1 EA
  • Mate Gitabi vs. Jane Kaburu Muga and 3 Others
    Nyeri Court Of Appeal Civil Case No. 43 of 2015
  • Phyllis Wanjiru Kamau v Wilson Gichuhi Gachagwe & 2 others
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under an Originating Summons for adverse possession

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, "Joseph Kiama Gachungi v Wilfred Githinji Wamai (Sued as the administrator of the estate of Tabitha Wanjiru Mwithimbu alias Wanjiru M’mwithimbu) [2021] KEELC 3644 (KLR)", Case Analysis (2021). Originating Summons dated 20.3.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3644/eng@2021-04-21

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