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ELCPartially AllowedOriginating Summons dated 18th July 2019 (number not stated in judgment)· [2022] KEELC 1844 (KLR)

Fridah Muthoni Karanja & another v Alice Njeri Waweru & 4 others (Sued as the Personal Representatives of the Estate of Mohamed Waweru Mwithuka (Deceased) [2022] KEELC 1844 (KLR)

Environment and Land Court
2 February 2022
3,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kiambu family lost 0.5 acres to long-term occupants after a Murang'a court ruled that adverse possession claims in Kenya survive an owner's death and succession.

What this practically means

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Executive summary

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By an Originating Summons dated 18th July 2019, the Plaintiffs, Fridah Muthoni Karanja and Ayub Karanja Mwahuki, sought a vesting order, a declaration of prescriptive rights, and registration of approximately 0.5 acres excised from Title No. Muguga/Jet Scheme/587 in Kiambu County, claiming adverse possession against the estate of Mohamed Waweru Mwithukia, the registered owner since 16th December 1987, who died in 2015. They asserted occupation since the 1960s, construction of a permanent house, cultivation, and burials on the land without permission or licence. The Defendants, the deceased's personal representatives, contended the Plaintiffs were licensees whose entry was sanctioned by the original owner, Mbugua Mwithukia; that the claim was barred by Section 7 of the Limitation of Actions Act; that title had devolved to ten beneficiaries by a confirmed grant of 1st August 2019 so time ran afresh; and that a claim cannot be brought against a deceased's estate if not filed before death. The court, per L. Gacheru J, applied Section 38 of the Limitation of Actions Act and the principles in Wilson Kazungu Katana. It held that the original owner's consent lapsed on his demise; the new registered owner neither consented nor asserted his rights, so possession became adverse from 1987. The claim survived the change of title through succession, and the unsurveyed 0.5 acres was sufficiently identifiable from photographs. Judgment was entered for the Plaintiffs with a vesting order, a declaration of prescriptive rights, and an order for excision and registration, with each party bearing its own costs.

Key legal issues

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01

Whether the Plaintiffs were licensees whose possession could not be adverse

Holding

The consent of the original owner lapsed on his demise; the new registered owner gave no consent and never asserted his rights, so possession became adverse

Reasoning

The Plaintiffs entered with the consent of the original owner, Mbugua Mwithukia. Upon his death, Mohamed Waweru became registered owner in 1987 but gave no permission to the Plaintiffs and took no steps to assert his title. Consent to occupy therefore terminated on the original owner's demise, and continued open occupation was adverse to the new registered owner's title.

p. 4
02

Whether the adverse possession claim survived the change of title through succession to the estate

Holding

Yes; the claim runs against the title, not the holder, and does not survive or stop on transmission of title

Reasoning

Relying on Karuntimi Raiji v M'Makinya M'itunga and Titus Mutuku Kasuve v Mwaani Investments Ltd, the court held that a change of ownership of land occupied by another in adverse possession does not interrupt the possession. The Defendants' argument that time began running afresh from the confirmed grant of 1st August 2019 was rejected.

p. 4
03

Whether the unsurveyed 0.5 acres claimed was sufficiently identified

Holding

Yes; although not surveyed by a valuer, the portion is identifiable from clear demarcations shown in photographs

Reasoning

Following Gabriel Mbui v Mukindia Maranya, the portion adversely possessed must be identifiable even if it lacks a plot or title number. The court found clear demarcations on the photographs, so the absence of beacons or survey did not defeat the claim.

p. 4
04

Whether the Plaintiffs proved adverse possession on the required standard

Holding

Yes; continuous, open and exclusive possession since 1987 established the claim on a balance of probabilities

Reasoning

The court found the Plaintiffs had been in continuous and uninterrupted possession since 1987 when the deceased became registered owner, used the land openly and to the exclusion of the Defendants, and the claimed portion was identifiable. It therefore held the Plaintiffs entitled to the portion by adverse possession.

p. 4

Legal principles established

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  • A claim for adverse possession runs against the title and survives a change of ownership, including transmission to a deceased owner's estate; time does not stop running
  • Possession does not become adverse while the occupant is in possession with the owner's permission; adverse possession runs only after the permission is terminated
  • Adverse possession may be claimed over a part of land if the portion is identifiable even if unsurveyed

Court orders

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  1. 1.A vesting order issued that a portion of land measuring approximately 0.5 acres be excised from land Title No. Muguga/Jet Scheme/587, Kiambu County, registered in the name of Mohamed Waweru Mwithukia and in possession and actual occupation of the Plaintiffs
  2. 2.An order that the Plaintiffs have acquired prescriptive rights over a portion measuring approximately 0.5 acres in Title No. Muguga/Jet Scheme/587 under the doctrine of Adverse Possession
  3. 3.An order that a portion measuring approximately 0.5 acres be excised from Title No. Muguga/Jet Scheme/587 and be registered in the names of the Plaintiffs
  4. 4.Each party to bear its own cost of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSection 7

Cases cited (10)

  • Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another
    [2015] eKLR
  • Peter Okoth v Ambrose Ochido Andajo & Benedict Odhiambo Oketch
    [2021] eKLR
  • Samuel Miki Waweru v Jane Njeri Richu
    Civil Appeal No. 122 of 2001 (UR)
  • Jandu v Kirpal
    [1975] EA 225
  • Karuntimi Raiji v M'Makinya M'itunga
    (2013) eKLR
  • Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others
    Civil Appeal No. 35 of 2002 [2004] eKLR
  • Githu v Ndeete
    [1984] KLR 776
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Kinguru v Gathangi
    op cit, at p 260
  • Matheri v Kanji
    [1976] Kenya L R 140 at 141
Jurisdiction invoked
Original jurisdiction under 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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Cite this brief

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Cite this brief

Caselaw, "Fridah Muthoni Karanja & another v Alice Njeri Waweru & 4 others (Sued as the Personal Representatives of the Estate of Mohamed Waweru Mwithuka (Deceased) [2022] KEELC 1844 (KLR)", Case Analysis (2022). Originating Summons dated 18th July 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1844/eng@2022-02-02

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