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ELCPartially AllowedELC Appeal (Kerugoya) arising from CMCC No. 248 of 2017 (Kerugoya)· [2022] KEELC 1748 (KLR)

Reuben Muriuki Kaara & 2 others v Virginia Muringo Kimotho & 4 others [2022] KEELC 1748 (KLR)

Environment and Land Court
20 January 2022
4,231 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed land titles can be wiped out by 40+ years of someone else's occupation, even against registered owners.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kerugoya against the judgment of the trial magistrate in CMCC No. 248 of 2017 (Kerugoya) delivered on 30th April 2018. The appellants, as plaintiffs below, sought declarations that they were absolute owners of L.R. KABARE/MIKARARA/1185 and 1186, eviction of the defendants and a permanent injunction. The defendants counter-claimed for a declaration that the appellants' titles had been extinguished by adverse possession. The trial magistrate granted the plaintiffs a permanent injunction but declined to determine the adverse possession counter-claim, holding that such a claim required an originating summons under Order 37 rule 7 of the Civil Procedure Rules and was beyond the magistrate's jurisdiction. On appeal, E.C. Cherono, ELC Judge, held that magistrates appointed under Section 26(3) and (4) of the Environment and Land Court Act and Section 9(a) of the Magistrates' Courts Act have jurisdiction over title and occupation disputes, including adverse possession, and that Section 38 of the Limitation of Actions Act must be construed in conformity with the 2010 Constitution per Section 7(1) of the Sixth Schedule. On the evidence, the respondents had occupied the land openly, continuously and uninterruptedly for over 40 years; the appellants, including the 4th appellant who never testified or filed a defence to the counter-claim, never took possession. The court cancelled Order 1 of the trial judgment and substituted a declaration that the appellants' titles were extinguished by operation of law, directing registration of the suit lands in the respondents' names, with costs of the suit and appeal to the respondents.

Key legal issues

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01

Jurisdiction of the Magistrate's Court to determine adverse possession pleaded in a counter-claim

Holding

The trial magistrate misdirected himself in law by declining to determine the adverse possession claim for want of jurisdiction; such claims relate to title to land within the magistrate's jurisdiction under Section 26(3) and (4) ELC Act and Section 9(a) Magistrates' Courts Act.

Reasoning

The trial court had reasoned that adverse possession under Order 37 rule 7 CPC must be by originating summons returnable to a Judge, hence beyond its jurisdiction. The appellate court held that magistrates appointed under Article 169(2), the ELC Act and the Magistrates' Courts Act are seized of civil matters involving occupation and title to land, including adverse possession. Section 38 of the Limitation of Actions Act, predating the 2010 Constitution, must be construed in conformity with the Constitution per Section 7(1) of the Sixth Schedule.

p. 6
02

Whether the respondents proved adverse possession

Holding

Yes. The respondents occupied the suit land openly, continuously and uninterruptedly for over 40 years, and the appellants never took possession; the uncontroverted evidence of the 1st respondent established the claim.

Reasoning

The 4th appellant never testified, never filed a defence to the counter-claim, and her 1966 registration was never accompanied by possession. The 1st, 2nd and 3rd appellants also never occupied the land after the 2015 subdivision and transfer. The respondents' evidence of occupation since the 1960s, homesteads, graves and coffee stems was unchallenged in cross-examination, proving the counter-claim beyond peradventure.

p. 5

Legal principles established

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  • Magistrates' Courts duly appointed under Section 26(3) and (4) of the Environment and Land Court Act have jurisdiction to determine claims of adverse possession as matters involving title to land; Section 38 of the Limitation of Actions Act must be construed in conformity with the 2010 Constitution.
  • On a first appeal, the appellate court must reconsider and re-evaluate the evidence afresh, giving due allowance that it neither saw nor heard the witnesses.

Court orders

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  1. 1.Order 1 of the trial court's judgment (permanent injunction restraining the respondents from interfering with the appellants' quiet possession over L.R. KABARE/MIKARARA/54 now sub-divided into L.R. KABARE/MIKARARA/1185 and 1186) is cancelled
  2. 2.Substituted with a declaration that the appellants' title deeds over L.R. KABARE/MIKARARA/54 now sub-divided into L.R. KABARE/MIKARARA/1185 and KABARE/MIKARARA/1186 have been extinguished by operation of the law
  3. 3.The suit lands be registered in the names of the respondents who have acquired the same by adverse possession
  4. 4.Costs of the suit in the Magistrate's Court and of the Appeal awarded to the defendants/respondents
On appeal from
Chief Magistrate's Court, Kerugoya
CMCC No. 248 of 2017
Jurisdiction invoked
First appeal to the Environment and Land Court under the Environment and Land Court Act, 2011; Magistrates' Courts jurisdiction under Article 169(2) of the Constitution, Section 26(3) and (4) of the Environment and Land Court Act and Section 9(a) of the Magistrates' Courts Act, 2015

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, "Reuben Muriuki Kaara & 2 others v Virginia Muringo Kimotho & 4 others [2022] KEELC 1748 (KLR)", Case Analysis (2022). ELC Appeal (Kerugoya) arising from CMCC No. 248 of 2017 (Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1748/eng@2022-01-20

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