Nahashon Gichohi Muiga v Edwin Onesmus Wanjau (suing in her Capacity as the Administrator of the Estates of Kimingi Wariera (Deceased) and of Mwangi Kimingi (Deceased) [2022] KEELC 1113 (KLR)
The bottom line
#A Kenyan court gave a land buyer two acres after 14 years of occupation, confirming that paying the full purchase price starts the adverse possession clock.
What this practically means
#Executive summary
#Key legal issues
#Threshold for adverse possession
The Applicant proved exclusive, open, continuous and non-permissive possession for over 12 years.
The court applied sections 7, 13 and 38 of the Limitation of Actions Act and the Wambugu v Njuguna principles: the owner must have been dispossessed or discontinued possession. Because the Applicant's entry was permissive under a sale, the court relied on the Public Trustee v Wanduru line of authority holding that a purchaser in possession who has paid the full purchase price is adverse to the vendor. Full payment was acknowledged in the supplementary agreement of 14 April 2007, so time ran from that date, exceeding 12 years by filing.
Commencement date of limitation where possession is permissive under a sale
Time began running on 14th April 2007, the date of the supplementary agreement acknowledging full payment of the purchase price.
The court distinguished a purchaser in possession pending completion (whose possession is by leave and licence) from a purchaser who has paid the whole price, relying on Wambugu v Njuguna, Public Trustee v Wanduru and Jethwa v Postal Corporation. Since the supplementary agreement recorded full payment, the Applicant's possession became adverse from that date, giving about 14 years by the suit's filing on 9th March 2021.
Identification of the land claimed
The two acres were sufficiently identified despite the land not being surveyed or subdivided.
Relying on Wilson Kazungu Katana v Salim Abdalla Bakshwein and Order 37 Rule 7 of the Civil Procedure Rules requiring a title deed extract, the court found the Applicant had attached the required extract. Although the court could not identify the exact occupation within the 8-acre parcel, both parties were aware of the Applicant's confines, and the agreement expressly specified two acres to be excised.
Interruption of adverse possession by succession proceedings
The Applicant's claim was not defeated by the succession cause; he was found to have remained in occupation.
The Respondent argued that the Summons for Confirmation of Grant and Affidavit of Protest interrupted possession. The court found the Applicant's testimony of vacating in 2006 was followed by regain of entry, corroborated by the supplementary sale agreement of 14 April 2007, and found no reason to doubt continuous open use thereafter. It rejected the Respondent's allegation that the Applicant never returned to the land.
Legal principles established
#- A purchaser in possession after paying the full purchase price is a person in whose favour the limitation period can run against the vendor, and time runs from payment (or from taking possession where possession follows full payment).
- Possession under a sale agreement with the vendor's consent is not adverse; possession becomes adverse upon full payment of the purchase price.
Court orders
#- 1.Judgment entered in favour of the Applicant against the Respondent as prayed in the Originating Summons in terms of prayers No. (a), (b), (c) and (d)
- 2.The Plaintiff declared entitled to two (2) acres out of land parcel LOC 13/GITUGI/422 by adverse possession
- 3.The Defendant's title to the said two acres declared extinguished and the Plaintiff to be registered as proprietor
- 4.Costs of the suit awarded to the Applicant
- Jurisdiction invoked
- Sections 7, 13 and 38 of the Limitation of Actions Act (Cap 22); Order 37 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Nahashon Gichohi Muiga v Edwin Onesmus Wanjau (suing in her Capacity as the Administrator of the Estates of Kimingi Wariera (Deceased) and of Mwangi Kimingi (Deceased) [2022] KEELC 1113 (KLR)", Case Analysis (2022). Originating Summons dated 3rd March 2021 (Murang'a ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1113/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.