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ELCPartially AllowedOriginating Summons dated 9th July 2020 (filed 13th July 2020)· [2022] KEELC 2314 (KLR)

Muyei & 15 others v Kwemoi Simatwa (Being sued as the Legal Representative of the Estate of Simatwa Malinga – Deceased (Environment & Land Case 14 of 2020) [2022] KEELC 2314 (KLR)

Environment and Land Court
29 June 2022
1,853 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Sixteen land buyers in Bungoma won ownership of their plots after 12+ years of occupation, even though the registered owner had died.

What this practically means

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Executive summary

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The 1st to 16th plaintiffs filed an Originating Summons seeking declarations that they had acquired title by adverse possession to portions of land parcel No Elgon/Chemoge/218, registered in the name of Simatwa Malinga (deceased), whose son and estate administrator, the defendant, had sold them various portions between 1993 and 2008. Each plaintiff produced a sale agreement and evidence of open, fenced, developed and continuous occupation exceeding twelve years. The defendant was served but neither entered appearance nor filed a response; the matter proceeded by formal proof. The court, Boaz N. Olao J, held that unrebutted affidavit averments are taken as true and admitted. Relying on Karuntimi Raiji v M'makinya M'itunga, the court confirmed that adverse possession may be claimed against a deceased person's estate, and citing Public Trustee v Wanduru, that a purchaser in possession who has paid the purchase price is one in whose favour limitation runs. Applying Kasuve v Mwaani Investments and Githu v Ndeete, the court found each plaintiff had proved exclusive, open, peaceful and uninterrupted possession for the statutory period over their respective portions, and that title may be acquired over part of a parcel. Judgment was entered for the plaintiffs: their adverse possession was declared, the Land Registrar and Surveyor Bungoma were ordered to demarcate and register the specified portions in their names, title No Elgon/Chemoge/218 was cancelled, the defendant was given 30 days to execute transfer documents with the Deputy Registrar empowered to execute in default, and, the suit being undefended, no orders as to costs were made. The plaintiffs to bear demarcation and registration costs.

Key legal issues

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01

Adverse possession against a deceased registered proprietor's estate

Holding

A claim for adverse possession lies against the Estate of a deceased registered proprietor; the plaintiffs were entitled to be registered in place of the deceased

Reasoning

The deceased remained the registered proprietor of the suit land and the defendant was merely the Administrator of his Estate under a confirmed grant. Relying on Karuntimi Raiji v M'makinya M'itunga, grounded on Section 30(f) of the repealed Registered Land Act and Section 2 of the Law Reform Act, the court confirmed that limitation can run against a deceased's estate, so registration of the plaintiffs in place of the deceased was proper.

p. 4
02

Purchasers in possession and the running of limitation

Holding

Purchasers who have paid the full purchase price and taken possession are persons in whose favour the limitation period can run

Reasoning

The sale agreements showed each plaintiff entered occupation as a purchaser having fully paid the defendant the purchase price. Applying Public Trustee v Wanduru, the earliest purchaser occupied in 1993 and the latest in 2008; by the filing of the suit on 13th July 2020 all had exceeded twelve years of open, exclusive, peaceful and uninterrupted possession with the defendant's knowledge.

p. 4
03

Effect of an undefended claim and formal proof

Holding

Unrebutted averments in the plaintiffs' supporting affidavits are taken as true and admitted, entitling the plaintiffs to judgment upon formal proof

Reasoning

The defendant was duly served with the Originating Summons and hearing notice but neither entered appearance nor filed a response. Consequently, the plaintiffs' affidavit averments stood unrebutted and were accepted as true, and the court found the plaintiffs had formally proved their respective cases on the evidence and documents produced.

p. 3
04

Adverse possession over part of a parcel

Holding

Title by adverse possession may be acquired over only a portion of a registered parcel, permitting partial cancellation and subdivision

Reasoning

Relying on Githu v Ndeete, the court held that adverse possession can attach to a part of the land. Each plaintiff claimed and occupied a defined portion of the 59.2-acre parcel, so the court ordered demarcation and registration of the individual portions and cancellation of the whole title No Elgon/Chemoge/218.

p. 4

Legal principles established

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  • A claim for adverse possession can be made against the Estate of a deceased registered proprietor
  • A purchaser in possession of land having paid the purchase price is a person in whose favour the period of limitation can run
  • To be entitled to land by adverse possession, the claimant must prove exclusive, open possession as of right without interruption for 12 years
  • Title by adverse possession can be acquired for only a part of a parcel of land

Court orders

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  1. 1.Declaration that the 1st to 16th plaintiffs have acquired by adverse possession the portions of land they occupy out of land parcel No Elgon/Chemoge/218
  2. 2.The Land Registrar and Land Surveyor Bungoma to demarcate and register in the plaintiffs' names the specified portions out of land parcel No Elgon/Chemoge/218
  3. 3.The plaintiffs to meet the costs of demarcation and registration
  4. 4.Title No Elgon/Chemoge/218 cancelled
  5. 5.The defendant to execute all necessary documents to facilitate registration within 30 days of the judgment
  6. 6.In default, the Deputy Registrar at liberty to execute the documents on behalf of the defendant
  7. 7.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Registered Land Act (repealed)Section 30(f)
  • Law Reform ActSection 2

Cases cited (5)

  • Karuntimi Raiji .v. M'makinya M'itunga
    2013 eKLR
  • Kasuve .v. Mwaani Investments Ltd & Others
    2004 1 KLR 184
  • Wanje .v. Saikwa No 2
    1984 KLR 284
  • Githu .v. Ndeete
    1984 KLR 776
  • Public Trustee .v. Wanduru
    1984 KLR 314
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act - claim for registration as proprietor by adverse possession

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, "Muyei & 15 others v Kwemoi Simatwa (Being sued as the Legal Representative of the Estate of Simatwa Malinga – Deceased (Environment & Land Case 14 of 2020) [2022] KEELC 2314 (KLR)", Case Analysis (2022). Originating Summons dated 9th July 2020 (filed 13th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2314/eng@2022-06-29

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