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ELCDismissedOriginating Summons dated 22nd April 2016· [2022] KEELC 715 (KLR)

Ndege Makori v Rose Kebati & another [2022] KEELC 715 (KLR)

Environment and Land Court
22 March 2022
JOJ. M. Onyango
3,711 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons dated 22nd April 2016 seeking a declaration that the Defendants' title to L.R No. WEST KITUTU/BOGUSERO/2551 was extinguished under the Limitation of Actions Act on the basis that he had openly, peacefully and continuously occupied the land for 37 years, together with orders for registration as proprietor, an injunction, and execution of transfer instruments. He claimed to have purchased 1.5 acres from the late Kebati Nyagwoka on 8th January 1979 for Kshs. 1,400. The Defendants denied the sale, the occupation, and contended the parcel claimed did not exist, having been sub-divided into parcels 9198 and 9199, one of which was transferred to a third party. The sole issue was whether the Plaintiff had proved entitlement by adverse possession. The court held he had not: the sale agreement showed NIL payment, leaving the start of the limitation period unproven; the portion bought was never fenced or identified; the Plaintiff was unaware of the 1988 sub-division, contradicting his claim of actual possession; and the deceased and his family had cultivated the land. Further, the inhibition obtained in 2018 was served on the Land Registrar only in August 2021, after the sub-division, and the purchaser Thomas Maisiba Ondoro was never joined, so orders could not issue over a non-existent parcel against a non-party. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the Plaintiff acquired title to the suit property by adverse possession

Holding

The claim failed because the Plaintiff did not prove exclusive, open, peaceful and continuous occupation for over twelve years

Reasoning

The sale agreement showed NIL payment, so the date time began to run was unproven. The Plaintiff bought only 1.5 acres out of a 1.1 hectare parcel and did not fence or identify his portion. He was unaware of the 1988 sub-division, inconsistent with actual possession. The 1st Defendant testified that the deceased cultivated the land until his death and the family still farms it. Further, the parcel had since been sub-divided and partly transferred to a non-party.

p. 5
02

Whether orders could issue over a parcel no longer in existence against a non-party

Holding

No - the claimed parcel had been sub-divided into 9198 and 9199 and part transferred to Thomas Maisiba Ondoro, who was never joined

Reasoning

Although an inhibition and leave to amend were granted on 10th May 2018, the inhibition was not served on the Land Registrar until 30th August 2021, after the sub-division, and the Originating Summons was never amended to add the purchaser. Orders could therefore not issue in respect of a non-existent parcel against a stranger to the suit.

p. 5

Legal principles established

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  • A claimant for adverse possession must prove actual, open, exclusive, peaceful and continuous possession for the statutory period; initial entry under a sale agreement is presumed permissive and time runs only from when possession becomes adverse
  • A claim for adverse possession must be proved by facts asserted, pleaded and proved, including exclusive possession that dispossesses the true owner
  • The court cannot make orders over a parcel that no longer exists in favour of a claimant against a non-party

Court orders

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  1. 1.The Plaintiff's Originating Summons is dismissed with costs to the Defendants

Authorities

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Legislation

  • Limitation of Actions Actsections 7 and 38(1)
  • Land Control Actsection 6(1)
  • Law of Contract Actsection 3(3)

Cases cited (12)

  • Rhoda Mongina Ongoro & 2 Others v Johnstone Nyanyuki Menge
    (2019) eKLR
  • Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 Others
    (2018) eKLR
  • Kiprono Arap Chepkwony v Bornes Taprandich & Another
    (2019)
  • Peter Thuo v Kuria Gacheru
    (1988) 2KAR
  • Mwangi & Another v Mwangi
    (1986) KLR 328
  • Wambugu v Njuguna
    (1983) KLR 172
  • Moses Kamande Nyambura v Francis Munyua Ngugi
    (2018) eKLR
  • Wanje v Saikwa
  • Gabriel Mbui v Mukindia Maranya
    (1993) eKLR
  • Mbira v Gachuhi
    (2002) 1EALR 137
  • Jandu v Kirpial & Another
    (1975) EA 225
  • Mtana Lewa v Kahindi Ngala Mwangandi
    (2005) eKLR
Jurisdiction invoked
Sections 7 and 38(1) of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Ndege Makori v Rose Kebati & another [2022] KEELC 715 (KLR)", Case Analysis (2022). Originating Summons dated 22nd April 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/715/eng@2022-03-22

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