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ELCAllowedOriginating Summons dated 14.6.2019 (Meru ELC)· [2022] KEELC 1983 (KLR)

Ambrose Kirimi v Emilio Marangu (Being sued as the administrator of the estate of Aribu Bolwa (Deceased) & 5 others [2022] KEELC 1983 (KLR)

Environment and Land Court
26 January 2022
917 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Meru awarded a buyer title to 1.90 acres by adverse possession, even though the sellers had no legal authority to sell estate land.

What this practically means

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Executive summary

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The plaintiff filed an originating summons dated 14.6.2019 under Sections 7 and 38 of the Limitation of Actions Act, Order 37 Rule 7 of the Civil Procedure Rules, Section 7(d) of the Land Act and Sections 28 and 107 of the Land Registration Act, seeking a declaration that he had acquired by adverse possession a portion measuring approximately 1.90 acres of L.R Igoji/Gikui/1087, which he occupied since August 2006, and an order directing the District Land Registrar to register him as proprietor. He testified that he bought the land for Kshs.100,000 under a sale agreement dated 1.6.2006 with Fabian Riungu Agostino, produced acknowledgment receipts, a chief's letter and a gazette notice showing the registered owner, Aribu Bolwa, died on 12.5.1982, and that he fenced his portion and enjoyed peaceful, open and uninterrupted occupation for over 12 years without interference by the defendants, sons of the deceased who petitioned for letters of administration in Meru High Court Succession Case No. 200 of 2018. The court applied the settled ingredients of adverse possession and, although noting the defendants lacked capacity to sell at the material time, held under Section 16 of the Limitation of Actions Act that the claim was maintainable and that the plaintiff's possession was adverse to the estate and its beneficial owners. Finding the claim proved on a balance of probabilities, the court declared the plaintiff owner of the 1.90-acre portion by adverse possession, ordered his registration, authorised the legal representative or Deputy Registrar to sign transfer documents, dispensed with land control board consent, and ordered each party to bear its own costs.

Key legal issues

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01

Ingredients of adverse possession

Holding

The plaintiff's occupation since 2006 was actual, open, peaceful and uninterrupted for over 12 years and thus adverse

Reasoning

Relying on Chevron (K) Ltd v Harrison Charo Wa Shutu and Gabriel Mbui v Mukindia Maranya, the court required possession that is actual, open, continuous, exclusive, peaceful and uninterrupted for 12 years. The plaintiff entered on 1.6.2006, fenced off his portion after clearing the purchase price, and the defendants did not deny his possession, so the statutory period was met.

p. 2
02

Effect of sale by persons without capacity (sons of deceased registered owner)

Holding

Although the defendants lacked capacity to sell at the time, the plaintiff's adverse possession ran against the estate and its beneficial owners, aided by Section 16 of the Limitation of Actions Act

Reasoning

The registered owner died on 12.5.1982 and the defendants, sons of the deceased, sold in 2006 without grant. The court held that under Section 16 of the Limitation of Actions Act a claim can be founded where no interval separates death and the grant, and that the plaintiff's rights accrued against the defendants as beneficial owners of the estate.

p. 2
03

Standard of proof

Holding

The plaintiff proved his claim on a balance of probabilities

Reasoning

The plaintiff produced a search, sale agreement, acknowledgment receipts, chief's letter and gazette notice evidencing the death of the registered owner. The defendants did not deny his possession. On this evidence the court found the claim proved on a balance of probabilities and granted the declarations and registration orders sought.

p. 2

Legal principles established

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  • For adverse possession to found a claim, the possession must be actual, open, continuous and exclusive for 12 years, uninterrupted and peaceful
  • Where there was no interval between the death of the registered owner and the grant of letters of administration, a claim under the Limitation of Actions Act can still be founded and possession adverse to the estate accrues against the beneficial owners

Court orders

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  1. 1.A declaration that the plaintiff has acquired ownership of L.R Igoji/Gikui/1087 to the extent of a portion measuring 1.90 acres through adverse possession
  2. 2.An order for the plaintiff to be registered as the sole proprietor of the portion measuring 1.90 acres
  3. 3.The legal representative of the estate of Fabian Riungu Agostino or the Deputy Registrar of the court is authorized to sign all requisite documents to facilitate the registration
  4. 4.The consent of the land control board is dispensed with in the implementation of the judgment
  5. 5.Each party to bear its own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSection 16
  • Civil Procedure RulesOrder 37 Rule 7
  • Land ActSection 7(d)
  • Land Registration ActSection 28
  • Land Registration ActSection 107

Cases cited (5)

  • Chevron (K) Ltd –vs- Harrison Charo Wa Shutu
    [2016] eKLR
  • Gabriel Mbui –vs- Mukindia Maranya
    [1993] eKLR
  • Mate Gitabi –vs- Jane Kaburu Muga & 3 Others
    Nyeri Court of Appeal Civil Case No. 43 of 2015
  • Peter Mbiri Michuki –vs- Samuel Mugo Michuki
    Court of Appeal Nyeri Civil Appeal No. 22 of 2013
  • Karuntimi Raiji –vs- M'makinya M'itunga
    [2013] eKLR
Jurisdiction invoked
Sections 7 and 38 of the Limitation of Actions Act; Order 37 Rule 7 Civil Procedure Rules; Section 7(d) of the Land Act; Sections 28 and 107 of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Ambrose Kirimi v Emilio Marangu (Being sued as the administrator of the estate of Aribu Bolwa (Deceased) & 5 others [2022] KEELC 1983 (KLR)", Case Analysis (2022). Originating Summons dated 14.6.2019 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1983/eng@2022-01-26

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