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ELCDismissedNakuru ELC (Originating Summons) – Amended Originating Summons dated 17th November 2004, amended 8th November 2006· [2021] KEELC 4543 (KLR)

Bernard Ndungu v David Komu Mukumbu (Environment & Land Case 205 of 2018) [2021] KEELC 4543 (KLR)

Environment and Land Court
28 January 2021
5,669 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a nephew's claim to own his uncle's land through adverse possession because his stay was by permission, not hostility.

What this practically means

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Executive summary

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The plaintiff, nephew of the defendant, sued by amended originating summons seeking a declaration that the defendant's title to land parcel Nakuru Municipality Block 2/203 (formerly Block 2/202) was extinguished and that he had acquired title by adverse possession, having allegedly occupied the property peacefully, openly and continuously since 1965, first with his grandmother Agnes Njeri (registered co-proprietor with the defendant) and after her death in 1977 on his own account, collecting rents from tenants. The defendant, a retired police officer who purchased the property in 1960 and registered it jointly with his aunt Agnes Njeri, denied adverse possession. He contended the plaintiff entered with permission to attend school and later acted as caretaker collecting rent on his behalf; that family members, including the defendant's children and sister, resided on the property at various times; and that a succession cause had vested the whole interest in him after the grandmother's death. The matter was heard de novo in the Environment and Land Court after part-hearing in the High Court. Applying Wambugu v Njuguna and related authorities, the court held that the plaintiff's entry was permissive, that his possession was not exclusive given the occupation of the property by the defendant's family members, and that the defendant was neither dispossessed nor had he discontinued possession. The court endorsed the principle that relatives must prove more to sustain adverse possession claims and declined to allow the doctrine to be weaponised against benefactors. The plaintiff's suit was dismissed; the plaintiff was ordered to vacate the suit property within 30 days failing which eviction would issue; and, considering the family relationship, the court ordered each party to bear their own costs.

Key legal issues

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01

Whether the plaintiff's entry into and possession of the suit property was adverse

Holding

The plaintiff's entry was with the permission of the registered owners; his possession was permissive, not adverse

Reasoning

The court found on the evidence that the defendant was aware of and sanctioned the plaintiff's presence on the property. Entry in 1965 was on the invitation of the grandmother as co-owner with the defendant's approval. Permissive occupation is incapable of ripening into adverse possession, and the licence continued after the grandmother's death. Default in accounting for rent collected as caretaker did not convert the possession into hostile possession.

p. 5
02

Whether the plaintiff's possession was exclusive and whether the defendant was dispossessed

Holding

The possession was not exclusive; the defendant was neither dispossessed nor had he discontinued possession for the statutory period

Reasoning

Family members including the defendant's daughter, sons and sister resided on the property at various times with the defendant's consent, and the defendant's son collected rent on his behalf from 1986 to 1996. Correspondence showed the plaintiff collecting and accounting for rent. The court found the property served as family property and that the plaintiff shared occupation, so exclusivity and dispossession were not established.

p. 5
03

Whether a relative's claim for adverse possession requires more proof

Holding

Yes; a close relative must prove more, because permissive occupation among relatives is common

Reasoning

Following Njenga Kimani v Kimani Nganga Wainaina, the court endorsed the view that much more is needed for a close relative to prove adverse possession since relatives commonly allow each other possession without expecting eviction after 12 years. The court held that allowing the doctrine to be used by relatives against their benefactors would constitute abuse of the doctrine.

p. 4

Legal principles established

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  • A claimant for adverse possession must prove not mere possession but possession that is adverse, open, exclusive and uninterrupted for 12 years, on a balance of probabilities
  • Permissive entry followed by continued occupation remains under licence; the death of the person who permitted the entry does not terminate the licence
  • The doctrine of adverse possession should not be weaponised by relatives against benefactors who allowed them to occupy land; such use constitutes abuse of the doctrine
  • Default in accounting for rent collected as an agent does not convert a licensee into an adverse possessor

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.The plaintiff is ordered to vacate from the defendant's land parcel Nakuru Municipality Block 2/203 within 30 days from the date of judgment failing which an order for his eviction to issue
  3. 3.Each party shall bear their own costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActStatutory period of 12 years for adverse possession (referred to as the statutory period)

Cases cited (15)

  • Paul Kamande Gicheha -vs- Jacob Kinyua Kiragu
    (2018) eKLR
  • Celina Muthoni Kithinji -vs- Safiya Binti Swaleh & 8 others
    (2018) eKLR
  • Mbira -vs- Gathoni Gachuhi
    (2002) 1 EALR 137
  • Jandu -vs- Kirplal & Another
    (1975) EA 225
  • Mtana Lewa -vs- Kahindi Ngala Mwangandi
    (2005) eKLR
  • Wambugu -vs- Njuguna
    (1983) KLR 173
  • Francis Kanyoro Muniu -vs- Salim Mandatally Manji
    (2018) eKLR
  • Sundiata Nathan Mutende -vs- Willy Mwololo Miondi
    (2018) eKLR
  • Kenneth Njoroge Kamau -vs- Macson Githumbi Kariuki & 2 others
    (2015) eKLR
  • Gabriel Mbui -vs- Mukindia Maranya
    (1993) eKLR
  • Ernest Wesonga Kweyu -vs- Kweyu Omuto
    CA Civil Appeal No. 8 of 1990 (unreported)
  • Njenga Kimani & 2 others -vs- Kimani Nganga Wainaina
    (2017) eKLR
  • Samuel Kihamba -vs- Mary Mbaisi
    (2015) eKLR
  • Kasure -vs- Mwaani Investments Ltd & 4 others
    (2004) KLR 184
  • Wanje -vs- Saikwa
    (1984) KLR 284
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (as the matter was heard de novo by this court after part-hearing before the High Court; the judgment does not expressly cite the provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bernard Ndungu v David Komu Mukumbu (Environment & Land Case 205 of 2018) [2021] KEELC 4543 (KLR)", Case Analysis (2021). Nakuru ELC (Originating Summons) – Amended Originating Summons dated 17th November 2004, amended 8th November 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4543/eng@2021-01-28

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