Charity Nyaguthii Kamutu & 2 others v Anthony Munene Githumba (sued as the Administrator of the Estate of the Late Githumba Kanyugi and on his own behalf) & 3 others [2021] KEELC 4187 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata due to prior Land Disputes Tribunal proceedings
The suit is not res judicata because the applicant did not produce the Tribunal's decision, proceedings or the outcome of the appeal to the Provincial Appeals Tribunal
The 3rd applicant averred that the Tribunal ordered the suit property divided and that the award was adopted as a court order on 23rd November 2005, with an appeal by Githumba pending at his death. However, the applicant did not file the Tribunal's decision or the appeal proceedings in his list of documents. Without evidence of a concluded prior case finally determining the matter between the same parties, the res judicata plea fails.
Whether the applicants have been in adverse possession for over 12 years
Yes - the applicants proved open, peaceful, continuous occupation without the owner's permission for not less than 12 years
The plaintiffs testified they settled on the land openly and continuously for over 20 years, save for intermittent harassment by the deceased Githumba who uprooted their crops and attempted to flood their compound. Applying the Mtana Lewa definition and the nec vi, nec clam, nec precario standard, the court was satisfied the possession was peaceful, open, continuous and non-permissive for the statutory period.
Whether the land should be sub-divided and one acre transferred to the applicants
Yes - the applicants are entitled to one acre acquired by adverse possession, to be transferred from the suit parcel
Each plaintiff occupies approximately 0.33 of an acre, and the evidence showed the suit property is clan land where the applicants had laid claim under Kikuyu customary trust before the Land Disputes Tribunal. The averments about the Tribunal proceedings were not denied by the respondents. On the totality of the evidence, the court found the applicants had acquired one acre by adverse possession.
Legal principles established
#- Adverse possession requires non-permissive, actual, open, notorious and continuous use of the land for the statutory period of 12 years in Kenya
- A party claiming adverse possession must prove possession was peaceful, open and continuous (nec vi, nec clam, nec precario)
Court orders
#- 1.The applicants are entitled to one acre out of land parcel No. INOI/KARIKO/280
- 2.The respondents to execute all statutory instruments and documents to effect the transfer of one acre out of the suit land parcel No. INOI/KARIKO/280 to the applicants
- 3.The Land Registrar, Kirinyaga County to rectify the register to reflect the transfer of one acre from the respondents to the applicants in respect to land parcel No. INOI/KARIKO/280
- 4.Each party to bear her own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land claims (adverse possession claim brought by Originating Summons)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charity Nyaguthii Kamutu & 2 others v Anthony Munene Githumba (sued as the Administrator of the Estate of the Late Githumba Kanyugi and on his own behalf) & 3 others [2021] KEELC 4187 (KLR)", Case Analysis (2021). Originating Summons dated 19th December 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4187/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.