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ELCPartially AllowedNot stated in the judgment (Nakuru Environment and Land Court)· [2022] KEELC 2501 (KLR)

Gachoka & another v Njuguna (Environment and Land Case Civil Suit 49 of 2017) [2022] KEELC 2501 (KLR)

Environment and Land Court
7 July 2022
8,365 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an oral promise to gift land means nothing legally, and ordered the occupant evicted after rejecting his adverse possession claim.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Joseph Gachoka Kaguku (deceased), the registered owner of land parcel Nakuru/Rare/Kiriri/574 (approx. five acres, title issued 12th January 1983), sued the defendant, who had occupied the land since the early 1990s after neighbours arranged for his family to live there following a family dispute and an attempted suicide. The plaintiffs sought a declaration of ownership and eviction, alleging the defendant was a caretaker/tenant who overstayed. The defendant counterclaimed, asserting he and his wife were invited by the deceased to occupy and cultivate the land, that the deceased promised or gifted them one acre, and claiming damages of Kshs. 1,711,600 for destruction of property by the plaintiffs and officials in 2016; he also pleaded adverse possession. The defendant and his wife conceded the land belonged to the deceased. L. A. Omollo, J, framed five issues. On ownership, the title deed, confirmed grant and the defendant's own concessions established the plaintiffs as legal and beneficial owners. On the gift, applying Evans Onguso, Estate of M'Raiji Kithiano and Estate of Gedion Manthi Nzioka, the court held the alleged gift was a mere oral promise - incomplete and imperfect, with no transfer, survey or writing - and unenforceable. On adverse possession, section 9(2) of the Limitation of Actions Act fixed accrual of the right of action at the date of death (28th February 2013); suit was filed only four years later, and possession having begun with the deceased's consent, it was not adverse. Judgment was entered for the plaintiffs: a declaration of ownership, an eviction order, a 90-day stay of execution, and each party bearing its own costs. The defendant's counterclaim failed.

Key legal issues

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01

Whether the plaintiffs are the legal and beneficial owners of the suit land

Holding

Yes; the deceased was the registered owner, plaintiffs held a confirmed grant, and the defendant's own case acknowledged the deceased's ownership

Reasoning

PW1 produced the title deed issued on 12th January 1983, the death certificate and the confirmed grant naming the plaintiffs as administrators. The certificate of confirmation describes the suit land and the plaintiffs hold it for themselves and in trust for named persons. Critically, the defendant and all his witnesses acknowledged the property belonged to the deceased, only claiming one acre by gift or adverse possession. The court accordingly found the plaintiffs to be the legal and beneficial owners.

p. 11
02

Whether the alleged gift of one acre binds the plaintiffs

Holding

No; the gift was a mere oral promise, incomplete and imperfect and unenforceable

Reasoning

Relying on section 7 of the Land Act and authorities on gifts inter vivos, the court held that gifts of land must be effected by registered transfer or in writing/declaration of trust in writing. The deceased's statements amounted at most to a promise to give, with no transfer forms executed, no survey, no Land Control Board consent and no title. The court cannot compel the donor's estate to complete an imperfect gift.

p. 11
03

Whether adverse possession was established

Holding

No; possession was with the deceased's consent and the 12-year period had not run against the estate

Reasoning

Under section 9(2) of the Limitation of Actions Act, where the deceased owner was last in possession, the right of action accrued on the date of death (28th February 2013). Suit was filed in 2017, only four years later, far short of twelve years. Further, both the defendant and his wife admitted entry and occupation were with the deceased's permission, which defeats adverse possession, since consent-based possession is not adverse to the owner's title.

p. 14
04

Whether eviction orders should issue

Holding

Yes; as successful owners the administrators are entitled to possession

Reasoning

Having found the plaintiffs to be the legal and beneficial owners and having dismissed both the gift claim and the adverse possession defence, the court held the administrators have every right to take possession. Eviction was ordered against the defendant, his servants and agents, but tempered with a 90-day stay of execution.

p. 16

Legal principles established

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  • An oral promise to gift land, not followed by a written memorandum or transfer, is incomplete and unenforceable
  • Possession under a licence or consent of the owner cannot found adverse possession; the entry must be adverse to the owner's title
  • Where a landowner dies while in possession, the right of action to recover the land accrues on the date of death under section 9(2) of the Limitation of Actions Act

Court orders

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  1. 1.A declaration that the Plaintiffs are the legal and beneficial owners of land known as LR Nakuru/Rare/Kiriri/574
  2. 2.An eviction order against the Defendant, his servants and/or agents in respect of LR Nakuru/Rare/Kiriri/574
  3. 3.Stay of execution of the eviction order for 90 days from the date of judgment
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • The Land Act, 2012Section 7
  • Limitation of Actions Act (Cap 22)Sections 7, 9(2), 13, 37, 38
  • Civil Procedure Act (Cap. 21)Section 27

Cases cited (17)

  • Mtana Lewa Vs Kahindi Ngala Mwangandi
    [2005] eKLR
  • Tabitha Waitherero Kimani Vs Joshua Ng'ang'a
    [2017]
  • Evans Onguso & 2 others v Peter Mbuga & 4 others
    [2020] eKLR
  • Estate of M'Raiji Kithiano (Deceased)
    Meru HC Succ. Cause No. 419 of 2006
  • The Estate of the late Gedion Manthi Nzioka (deceased)
    (2015) eKLR
  • Kahindi Ngala Mwagandi Vs Mtana Lewa
    [2014] eKLR
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
  • Adnam v Earl of Sandwich
    (1877) 2QB 485
  • Peter Okoth v Ambrose Ochido Andajo & Benedict Odhiambo Oketch
    [2021] eKLR
  • Munyaka Kuna Company Limited Vs Bernado Vicezo De Masi (The Administrator of The Estate of Domenico De Masi (Deceased)
    (2018) eKLR
  • Wilson Kazungu Katana & 101 others v. Salim Abdalla Bakshwein & another
    [2015] eKLR
  • Kasuve v Mwaani Investments Limited & 4 others
    [2004] 1KLR 184
  • Wanje v Saikwa
    (2)
  • Samuel Miki Waweru v Jane Njeri Richu
    Civil Appeal No. 122 of 2001, (UR)
  • Jandu v Kirpal
    [1975] EA 225
  • Karnataka Board of Wakf vs Government of India & Others
    [2004] 10 SCC 779
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    SC. Petition No. 4 of 2012: [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim for declaration of ownership, trespass and eviction (article 162(2)(b) Constitution, not expressly cited in the judgment)

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, "Gachoka & another v Njuguna (Environment and Land Case Civil Suit 49 of 2017) [2022] KEELC 2501 (KLR)", Case Analysis (2022). Not stated in the judgment (Nakuru Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2501/eng@2022-07-07

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