Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedOriginating Summons dated 19th December 2016· [2021] KEELC 4187 (KLR)

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)

Environment and Land Court
19 February 2021
2,472 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
By Originating Summons dated 19th December 2016, three plaintiffs (daughters-in-law and son of the late Kagucui Kanyingi) claimed one acre out of land parcel No. INOI/KARIKO/280 by adverse possession, seeking a declaration of entitlement, sub-division and transfer. They testified that they had lived openly, peacefully and continuously on the land for over 50 years (each occupying approximately 0.33 of an acre), despite harassment by the late registered owner Githumba Kanyingi, who uprooted their crops, grazed cattle on their sugarcane and destroyed their improvements. The respondents, through the 2nd respondent's replying affidavit, denied adverse possession, asserting the plaintiffs were mere licencees permitted by the deceased to build on the land, and disputed the acreage claimed. The court framed four issues from the Originating Summons, plus the res judicata angle arising from earlier Kirinyaga Central Land Disputes Tribunal proceedings whose award was allegedly adopted as a court order on 23rd November 2005. The court held the suit was not res judicata because the applicant failed to produce the Tribunal's decision, proceedings or the outcome of the Provincial Appeals Tribunal appeal. Applying the doctrine of adverse possession as defined in Mtana Lewa v Kahindi Ngala Mwangandi, the court found the plaintiffs proved nec vi, nec clam, nec precario occupation for more than 12 years, and held they were entitled to one acre. Because the parties are close relations, the court exercised its discretion and ordered each party to bear her own costs. Judgment delivered at Kerugoya on 19th February 2021 by E.C. Cherono, ELC Judge.

Key legal issues

#
01

Whether the suit is res judicata due to prior Land Disputes Tribunal proceedings

Holding

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

Reasoning

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.

p. 3
02

Whether the applicants have been in adverse possession for over 12 years

Holding

Yes - the applicants proved open, peaceful, continuous occupation without the owner's permission for not less than 12 years

Reasoning

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.

p. 3
03

Whether the land should be sub-divided and one acre transferred to the applicants

Holding

Yes - the applicants are entitled to one acre acquired by adverse possession, to be transferred from the suit parcel

Reasoning

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.

p. 3

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. 1.The applicants are entitled to one acre out of land parcel No. INOI/KARIKO/280
  2. 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. 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. 4.Each party to bear her own costs

Authorities

#

Cases cited (5)

  • Susan Mumbi Waititu & 2 others Vs Mukuru Ndata & 4 others
    (2008) e K.L.R
  • Wanyoike Gathure Vs Beverly
    (1965) E.A. 514, 518, 519
  • Eliva Nyongesa Lusenaka & Another Vs Nathan Wekesa Omacha
    Kisumu Civil Appeal No. 134 of 1993 (UR)
  • Kasuve Vs Mwaani Investments Ltd & 4 Others
    (2004) K.L.R 184
  • Mtana Lewa Vs Kahindi Ngala Mwangandi
    (2005) e K.L.R
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.