Jared Wainaina Waweru & 4 others (Suing on their behalf and on behalf of 42 other Persons) v Mutirithia Wa Andu Company Limited & 4 others [2021] KEELC 4258 (KLR)
The bottom line
#A Nairobi court dismissed a group's 50-acre adverse possession claim because they couldn't identify the land or prove 12 years of occupation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs proved adverse possession of the Suit Property
The claim failed because the Plaintiffs could not identify the specific 50 acres or parcels claimed and did not prove twelve years of open, peaceful, uninterrupted possession; persons occupying the 2nd to 5th Defendants' plots entered after suit was filed
The sole Plaintiffs' witness was born in 1975 and his account was hearsay from his parents. The Plaintiffs each occupied roughly 1/8 acre, so 47 claimants could occupy under 13 acres, not the 50 acres claimed. They failed to give the new parcel numbers on the RIM for the plots claimed. Evidence showed the trespassers onto the 2nd to 5th Defendants' plots went there after the suit was filed and injunctive orders issued, and the order did not authorise trespass onto private land.
Whether the court order of 18/10/2007 authorised the Plaintiffs to occupy private plots
The order only restrained the 1st Defendant from evicting the Plaintiffs or interfering with their possession; it did not permit the Plaintiffs to trespass onto private land
The court examined the order of 18/10/2007 which restrained the 1st Defendant and its agents from trespassing on, demolishing or evicting the Plaintiffs from L.R. No. 8479. It found the Plaintiffs used the order to enter and build on private plots belonging to the 2nd to 5th Defendants, which the order did not authorise.
Whether the 2nd to 5th Defendants proved title and entitlement to the orders sought in their consolidated suits
Each of the 2nd to 5th Defendants proved their claims on a balance of probabilities and obtained the prayers sought in their respective plaints
Martin Njoroge Ngugi proved purchase of Nairobi Block 144/934 and a certificate of lease issued in 2011 with vacant possession. Raphael Thuku Gakere proved his certificate of lease for Nairobi Block 144/1121 issued on 26/2/2002 and obstruction by the Plaintiffs. Enocent Guguyu Mudindi proved purchase of plot 2093 (now Block 144/2035) and trespass by Francis Wanjohi. Grace Wanjiru Gichuhi proved the late Susan Gichuhi's plots and the 2009 trespass by Simon Muhia.
Legal principles established
#- A plaintiff claiming adverse possession must prove continuous, open, notorious and hostile possession for at least twelve years and must precisely identify the portion of land claimed
Court orders
#- 1.ELC Case No. 409 of 2006 (OS) dismissed with costs to the Defendants in that suit
- 2.Prayer (a) of the plaint dated 4/7/2003 in ELC No. 1084 of 2014 (formerly HCCC No. 676 of 2003) granted; Plaintiffs in that case awarded costs
- 3.Prayers (a) and (b) of the plaint dated 16/1/2013 in ELC No. 81 of 2013 granted; general damages of Kshs. 100,000/= plus costs awarded to Raphael Thuku Gakere
- 4.Prayers (a), (b) and (c) of the plaint dated 13/6/2014 in ELC Case No. 837 of 2014 granted; Enocent Guguyu Mudindi awarded costs
- 5.Prayers (a) and (b) of the plaint dated 6/10/2014 in Milimani CMCCC No. 5106 of 2009 granted together with costs to Grace Wanjiru Gichuhi
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over ownership, occupation and title to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jared Wainaina Waweru & 4 others (Suing on their behalf and on behalf of 42 other Persons) v Mutirithia Wa Andu Company Limited & 4 others [2021] KEELC 4258 (KLR)", Case Analysis (2021). ELC Case No. 409 of 2006 (OS), consolidated with ELC 1084 of 2007, 81 of 2013 and 837 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4258/eng@2021-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.