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)
The bottom line
#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
#Executive summary
#Key legal issues
#Adverse possession against a deceased registered proprietor's estate
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
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 Relying on Karuntimi Raiji v M'makinya M'itunga, grounded on Section 30(f) of the repealed Registered Land Act and Section 2 of the Law Reform Act, the court confirmed that limitation can run against a deceased's estate, so registration of the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.
Purchasers in possession and the running of limitation
Purchasers who have paid the full purchase price and taken possession are persons in whose favour the limitation period can run
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.
Effect of an undefended claim and formal proof
Unrebutted averments in the plaintiffs' supporting affidavits are taken as true and admitted, entitling the plaintiffs to judgment upon formal proof
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.
Adverse possession over part of a parcel
Title by adverse possession may be acquired over only a portion of a registered parcel, permitting partial cancellation and subdivision
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.
Legal principles established
#- 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
#- 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.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.The plaintiffs to meet the costs of demarcation and registration
- 4.Title No Elgon/Chemoge/218 cancelled
- 5.The defendant to execute all necessary documents to facilitate registration within 30 days of the judgment
- 6.In default, the Deputy Registrar at liberty to execute the documents on behalf of the defendant
- 7.No orders as to costs
- Jurisdiction invoked
- Section 38(1) of the Limitation of Actions Act - claim for registration as proprietor by adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.