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ELCAllowedOriginating Summons dated 3rd March 2021· [2022] KEELC 1154 (KLR)

Mary Wangari Macharia (Suing in her capacity as the adminstratix of the estate of Macharia Gutu Thungu(Deceased) 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 1154 (KLR)

Environment and Land Court
24 February 2022
LGL. GACHERU
5,267 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Murang'a court gave a family one acre of land they had openly occupied and paid for over 23 years, ruling the owner's title was extinguished.

What this practically means

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Executive summary

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By Originating Summons dated 3rd March 2021, the Applicant, administratrix of the estate of Macharia Gutu Thungu (deceased), sought a declaration that her late husband had acquired one acre out of LOC 13/GITUGI/422 by adverse possession, that the Defendant's title thereto was extinguished, and orders for transfer and costs. She contended that Kimingi Wariera sold the land to her husband, that the sale was renegotiated by the vendor's son Mwangi Kimingi vide an agreement dated 24th February 1998 for Kshs. 35,000, and that her family had occupied the land openly, exclusively and without interruption for over 50 years. The Respondent, administrator of the estates of Kimingi Wariera and Mwangi Kimingi, denied the sale, asserted the occupation was permissive, and argued that the succession cause and civil suits interrupted limitation. The court framed three issues: threshold for adverse possession, entitlement to the one acre, and costs. Holding that possession under a sale agreement becomes adverse upon final payment of the purchase price, the court found the husband became adverse on 24th February 1998. It further held that a succession cause and withdrawn civil suits do not stop time running absent steps to evict the adverse possessor. With 23 years of occupation established, and the land sufficiently identified, judgment was entered for the Applicant in terms of prayers (a), (b), (c) and (d), with costs, in a ruling delivered virtually at Murang'a on 24th February 2022.

Key legal issues

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01

When time for adverse possession began to run

Holding

Time ran from 24th February 1998, the date the renegotiated sale agreement was executed and the entire purchase price of Kshs. 35,000 was acknowledged as paid, making the purchaser's possession adverse from that date.

Reasoning

The initial sale agreement was not produced, but the agreement of 24th February 1998 was executed by both parties and evidenced an intention to be bound, with the vendor acknowledging receipt of Kshs. 35,000. Following Hosea v Njiru and Public Trustee v Wanduru Ndegwa, once the final instalment is paid the purchaser's possession becomes adverse to the vendor. The Respondent led no evidence to rebut this, so time was computed from that date.

p. 5
02

Whether the succession cause and related civil suits interrupted adverse possession

Holding

No. A succession cause does not stop time from running; nor do civil suits where there is no evidence of assertion of rights by the registered owner against the adverse possessor.

Reasoning

The court held that filing a claim asserting rights over land stops time, but a succession cause merely distributes a deceased's property; there was no evidence it was meant to evict the Applicant or assert rights over the land. Civil Suit 358 of 2017 was withdrawn before decision, and there was no evidence of assertion of rights by the Respondent in those suits, so time continued running.

p. 5
03

Whether the portion claimed was sufficiently identified

Holding

Yes. The land was identified by the Green Card extract as required by Order 37 Rule 7, and the parties were aware of the Applicant's confines notwithstanding lack of survey.

Reasoning

The title extract showed the land registered in the name of Kimingi Wairera measuring 8.0 acres. Although the court could not identify the exact occupation, it was not disputed that the Applicant occupied part of the land, an acre, and the parties were aware of the confines.

p. 6

Legal principles established

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  • Adverse possession attaches to land and not to title, and the mere filing of a succession cause or change of ownership does not stop time from running unless the registered proprietor takes steps to evict the adverse possessor.
  • Where possession under a sale agreement is permissive, limitation begins to run from the date of final payment of the purchase price, after which the purchaser's possession becomes adverse to the vendor.

Court orders

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  1. 1.Declaration that the Plaintiff became entitled to one (1) acre out of land parcel Number LOC 13/GITUGI/422 by adverse possession
  2. 2.Declaration that the Defendant's title to the said one acre is extinguished and/or invalid, null and void
  3. 3.The Plaintiff to be registered as proprietor of the one acre excised from LOC 13/GITUGI/422
  4. 4.The Defendant to execute the necessary documents to effect the transfer of the said one acre to the Plaintiff
  5. 5.Costs of the application/suit to the Plaintiff

Authorities

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Legislation

  • Registered Land Act (Cap 300 Laws of Kenya)repealed
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 38
  • Civil Procedure RulesOrder 37 Rule 7
  • Succession ActSections 45(1) and (2) (relied on by the Respondent in submissions)

Cases cited (11)

  • Murunga Kabangi & 2 Others vs. Hannah Wairimu Gitau & another
    (2019) eKLR
  • Wambugu vs Njuguna
    [1983] KLR 172
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Mbira v. Gachuhi
    (2002) 1 EALR 137
  • Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others
    [2018] eKLR
  • Public Trustee v Wanduru Ndegwa
    [1984] eKLR
  • Hosea v Njiru & Others
    [1974] EA 526
  • Bridges v Mees
    [1957] 2 All ER 577
  • Registered Trustee, Catholic Diocese of Murang’a v Micere Njau & 3 others
    [2022] eKLR
  • Wilson Kazungu Katana & 101 Others vs. Salim Abdalla Bakshwein & Another
    [2015] eKLR
  • Githu vs. Ndele
    [1984] KLR 776
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (order that a person entitled by adverse possession be registered as proprietor)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Mary Wangari Macharia (Suing in her capacity as the adminstratix of the estate of Macharia Gutu Thungu(Deceased) 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 1154 (KLR)", Case Analysis (2022). Originating Summons dated 3rd March 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1154/eng@2022-02-24

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