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ELCDismissedOriginating Summons dated 3rd March 2021· [2022] KEELC 1223 (KLR)

Njeri Kimani (Suing in her capacity as the adminstratix of the estate of Nasser Kimani Njoroge (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 1223 (KLR)

Environment and Land Court
24 February 2022
4,898 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan widow's adverse possession claim over an acre of land failed because she couldn't prove when the final payment for the property was made.

What this practically means

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Executive summary

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The Plaintiff, widow and administratrix of the estate of Nasser Kimani Njoroge (deceased), filed an Originating Summons dated 3rd March 2021 seeking a declaration that she had acquired one acre out of parcel LOC 13/GITUGI/424 by adverse possession, that the Defendant's title was extinguished, and an order for transfer. Her case was that the Defendant's father, Mwangi Kimingi, sold the land to her late husband under a sale agreement dated 1st February 1999 and gave him vacant possession, which continued uninterrupted for over 12 years. The Defendant, administrator of the estates of Kimingi Wariera and Mwangi Kimingi, responded that the land formed part of an undistributed estate in pending Succession Cause 23 of 2012; that occupation was permissive; and that the failure to prove when the purchase price was cleared defeated the claim. The ELC framed two issues: whether the threshold for adverse possession was met, and costs. The Court held that a claim based on a sale agreement only matures into adverse possession upon payment of the last instalment or repudiation of the contract. Although an acknowledgment of Kshs 130,000 dated 23rd February 2001 was produced, only Kshs 180,000 of the Kshs 200,000 consideration could be accounted for, and the Plaintiff failed to prove payment of the outstanding Kshs 20,000 or the date of the final instalment, which she bore as the burden. Time for adverse possession therefore never began to run. The Court also held that a succession cause per se does not stop time unless it asserts rights over the land. The Originating Summons was dismissed entirely with costs to the Respondent.

Key legal issues

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01

Whether the Applicant met the threshold for adverse possession

Holding

No - the Applicant failed to prove the date of the last instalment of the purchase price; occupation was permissive under a valid, uncompleted sale contract, so time for adverse possession never began to run

Reasoning

The Court traced the law under Sections 7, 13 and 38 of the Limitation of Actions Act and Wambugu v Njuguna. Where entry is under a sale agreement, possession is with the vendor's consent until completion or repudiation; time runs only from the last payment or termination of the contract. Although an acknowledgment dated 23rd February 2001 showed Kshs 130,000 paid, only Kshs 180,000 of the Kshs 200,000 consideration could be accounted for, and no evidence proved payment of the outstanding Kshs 20,000 balance. Without the exact date of final payment, the period of adverse possession cannot be computed.

p. 5
02

Whether the filing of a Succession Cause interrupted adverse possession

Holding

Not in the circumstances; a succession cause does not per se stop time unless it amounts to assertion of rights over the land, such as eviction steps or effective entry

Reasoning

Relying on Isaac Cypriano Shingore v Kipketer Togom and Githu v Ndeete, the Court held that assertion of right by the title holder occurs when the owner takes legal proceedings or makes effective entry into the land. There was no evidence the Succession Cause was filed to evict the Applicant or assert rights over the land, so it did not discontinue possession. The claim failed instead on the failure to prove the last instalment.

p. 4
03

Who should bear costs

Holding

Costs to the Respondent as the successful party

Reasoning

Applying the principle that costs follow the event, the Court exercised its discretion in favour of the Respondent, whose defence succeeded, and dismissed the Originating Summons with costs.

p. 6

Legal principles established

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  • A claim for adverse possession is attached to land and not title
  • A purchaser in possession with the vendor's permission pending completion cannot claim adverse possession unless the contract is repudiated or terminated
  • The plaintiff bears the burden of proving the exact date of payment of the last instalment to fix when possession became adverse
  • Mere filing of a succession cause does not stop time running in adverse possession unless it asserts rights over the land or seeks eviction

Court orders

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  1. 1.The Originating Summons dated 3rd March 2021 is dismissed entirely
  2. 2.Costs of the Originating Summons awarded to the Respondent

Authorities

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Legislation

  • The Registered Land Act (Cap 300 Laws of Kenya)
  • Limitation of Actions Act (Cap 22)Section 7
  • Limitation of Actions Act (Cap 22)Section 13
  • Limitation of Actions Act (Cap 22)Section 38
  • Limitation of Actions Act (Cap 22)Sections 9, 10, 11 and 12
  • Succession ActSections 45(1) and (2)

Cases cited (13)

  • 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
  • Isaac Cypriano Shingore v Kipketer Togom
    [2016] eKLR
  • Githu Vs. Ndeete
    [1984] KLR 776
  • 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
  • Joseph Gachumi Kiritu v Lawrence Munyambu Kabura
    [1996] eKLR
  • Samuel Miki v. Jane Njeri Richu
    CA No. 122 of 2001
  • Christopher Kioi & another v Winnie Mukolwe & 4 others
    [2018] eKLR
Jurisdiction invoked
Articles 162(2)(b) of the Constitution and Section 38 of the Limitation of Actions Act (Cap 22) - ELC jurisdiction over adverse possession claims

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njeri Kimani (Suing in her capacity as the adminstratix of the estate of Nasser Kimani Njoroge (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 1223 (KLR)", Case Analysis (2022). Originating Summons dated 3rd March 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1223/eng@2022-02-24

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