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ELCPartially AllowedOriginating Summons dated 4th March 2021· [2022] KEELC 1693 (KLR)

Mercy Muthoni Githinji (Suing as the legal representatives of Andrew Githinji Nduati- Deceased v Cecilia Wanja Waweru (Suing as the legal representatives of Zaverio Waweru Mwitari- Deceased [2022] KEELC 1693 (KLR)

Environment and Land Court
8 February 2022
LGL. GACHERU
4,641 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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What this practically means

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Executive summary

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The Applicant, legal representative of the estate of Andrew Githinji Nduati, sought a declaration of adverse possession over 2 acres of Maragua Ridge Settlement Scheme Plot 121, sold to her deceased husband in 1994 by the Respondent's late husband, who died before transfer. The Respondent opposed, arguing the sale was void for want of Land Control Board consent, that the purchase price was unpaid, that a purchaser cannot claim adversely, that the Applicant occupied only half an acre, and that the summons was defective for want of an extract of title. The ELC at Murang'a (L. Gacheru J) held that although entry was permissive under the sale agreement, time for adverse possession ran from payment of the final installment in August 1996, rendering the Applicant adverse from 2008. The Respondent's succession cause and letter to the Chief did not interrupt time, as adverse possession attaches to land, not title, and no effective assertion of right over the land was shown. Occupation through the Applicant's son, cultivation and construction satisfied nec vi, nec clam, nec precario and animus possidendi. The Respondent's contention that the Applicant occupied only half an acre lacked evidentiary basis absent a surveyor's report. The Court followed authority that a Certificate of Search suffices under Order 37 Rule 7(2). Judgment was entered for the Applicant: 2 acres to be excised upon demarcation and survey, title to issue in her name, the Deputy Registrar to execute documents, and costs to the Applicant. The prayer to delete the Respondent's name from the title was refused.

Key legal issues

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01

Whether the Applicant met the threshold for adverse possession

Holding

Yes. Entry was permissive under a sale agreement, but time ran from payment of the final installment in 1996, making the Applicant adverse from 2008; no step by the Respondent interrupted time

Reasoning

Entry under a sale agreement is permissive, but the Court of Appeal authorities establish that time begins to run upon payment of the last installment. Evidence showed final payment in August 1996. The Respondent's succession cause and letter to the Chief did not assert rights over the land, so time was uninterrupted. The Applicant's occupation through her son, cultivation and construction was open and continuous, satisfying nec vi, nec clam, nec precario and animus possidendi.

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02

Whether the Applicant is entitled to 2 acres of the suit property

Holding

Yes, 2 acres as pleaded, to be excised from the parcel; but only upon demarcation and survey, and not deletion of the Respondent's name

Reasoning

The Respondent's claim that the Applicant occupied only half an acre had no evidentiary basis; no surveyor's report was produced. Applying the finding that a purchaser becomes adverse upon final payment, the Court accepted the pleaded 2 acres. Since the entitlement is only to a portion, the prayer to delete the Respondent's name from the title could not issue; instead the Registrar was directed to issue title for the excised portion after survey.

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03

Whether failure to attach an extract of title under Order 37 Rule 7(2) rendered the suit defective

Holding

No. A Certificate of Search sufficed, following Johnson Kinyua v Simon Gitura Rumuri

Reasoning

The Respondent argued that absence of a Green Card extract was fatal. The Court distinguished authorities holding otherwise and followed the Court of Appeal in Johnson Kinyua, which held a Certificate of Search suffices. The Certificate attached was unchallenged in authenticity, and its evidentiary value is anchored in section 35 of the Land Registration Act.

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Legal principles established

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  • A purchaser's possession under a sale agreement is permissive; time in adverse possession runs from payment of the last installment of the purchase price
  • Adverse possession attaches to land and not to title
  • Steps taken on title as opposed to land do not stop time from running unless there is an assertion of right by legal proceedings or effective entry
  • A Certificate of Search can suffice in place of an extract of title under Order 37 Rule 7(2)

Court orders

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  1. 1.That the Applicant has proved her claim for adverse possession
  2. 2.That the Applicant is entitled to ownership of 2 acres to be excised from MARAGWA RIDGE SETTLEMENT SCHEME-PLOT 121, having acquired the same by dint of adverse possession
  3. 3.That Land Registrar Murang'a be and is hereby directed to issue title in the name of the Applicant for a portion of 2 acres upon the conclusion of the requisite process of demarcation and survey
  4. 4.The Deputy Registrar of the Honourable Court do execute all documents necessary to effect the said transfer
  5. 5.The Applicant is entitled to costs of this suit to be borne by the Respondent

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13(1),(2),(3)
  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSection 18(4)
  • Civil Procedure ActOrder 37 Rule 7(2)
  • Land Registration ActSection 35

Cases cited (19)

  • Francis Gicharu Kariri vs. Peter Njoroge Mairu
    (2005) eKLR
  • Public Trustee vs Wanduru Ndegwa
    (1984) KLR 314; Nyeri Civil Appeal No. 73 of 1982
  • Macharia Mwangi Maina & 87 Others vs Davidson Mwangi Kagiri
    (2014) eKLR
  • S.K. Koech vs W Gitonga
    (2016) eKLR
  • Peter Okoth vs. Ambrose Ochoda & Another
    (2021) eKLR
  • Nakuru Machinery Services & Another vs Eco Bank Limited
    (2017) eKLR
  • Peter Okoth vs Peter Ochido
    (2021) eKLR
  • Mtana Lewa Vs Kahindi Ngala Mwagandi
    [2015] eKLR; Malindi Civil Appeal No. 56 of 2014
  • Mombasa Teachers Co-operative Savings & Credit Society Limited Vs Robert Muhambi Katana & 15 others
    [2018] eKLR
  • Peter Mbiri Michuki v Samuel Mugo Michuki
    [2014] eKLR; Nyeri Civil Appeal No. 22 of 2013
  • Benson Mukuwa Wachira Vs Assumption Sisters of Nairobi Registered Trustees
    [2016] eKLR; Nairobi Civil Appeal No. 121 of 2006
  • Wilfred Kegonye Babu v Henry Mose Onuko
    [2019] eKLR; Kisumu App No. 82 of 2014
  • Wambugu v. Njuguna
    [1983] KLR 172
  • Samuel Kihamba v Mary Mbaisi
    [2015] eKLR; Kisumu Civil Appeal no. 27 of 2013
  • Chevron (K) Ltd Vs Harrison Charo Wa Shutu
    [2016] eKLR; Malindi Civil Case No 17 of 2016
  • Kiptanui A. Chuma v Kibor A. Kolil
    [2014] eKLR; Eldoret ELC No. 168 of 2012
  • Isaac Cypriano Shingore Vs Kipketer Togom
    [2016] eKLR; Eldoret Civil Appeal No. 212 of 2012
  • Githu Vs. Ndeete
    [1984] KLR 776
  • Johnson Kinyua Vs Simon Gitura Rumuri
    [2011] eKLR; Nyeri Civil Appeal No. 265 of 2005
Jurisdiction invoked
Original jurisdiction under Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules

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, "Mercy Muthoni Githinji (Suing as the legal representatives of Andrew Githinji Nduati- Deceased v Cecilia Wanja Waweru (Suing as the legal representatives of Zaverio Waweru Mwitari- Deceased [2022] KEELC 1693 (KLR)", Case Analysis (2022). Originating Summons dated 4th March 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1693/eng@2022-02-08

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