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ELCAllowedOriginationg Summons dated August 10, 2020 (not stated in judgment)· [2022] KEELC 2648 (KLR)

Kirimi & another v M’Twerandu (Environment & Land Case 31 of 2020) [2022] KEELC 2648 (KLR)

Environment and Land Court
13 July 2022
CNC.K. NZILI
2,102 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded land to two occupants who lived openly on it for over 12 years without the owner's permission.

What this practically means

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Executive summary

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The plaintiffs took out an originating summons under Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules claiming that they had been in open, peaceful and notorious occupation of one acre out of L.R No. Kiirua/Naari/Maitei/1083, registered in the defendant's name, for over 12 years, and sought an order for excision and registration in their favour. The defendant denied selling the land, asserting the plaintiffs were mere licencees whose developments were temporary, and alleged fraud in the procurement of evidence, urging their eviction. The plaintiffs traced their entry to 2007 as purchasers from Henry Mworia and Jeremiah Mwiti, who had bought portions from the defendant, and produced land control board consent, succession cause testimony, a chief's letter and photographs of permanent developments. The court framed three issues: whether a valid sale agreement existed, whether the ingredients of adverse possession were proved, and entitlement to the prayers. Citing Kimani Ruchire v Swift Rutherforld and Francis Gicharu Kariri, the court held that adverse possession requires non-permissive, open, exclusive and hostile occupation for 12 years. The defendant's licence claim failed for want of pleaded terms or termination; his admissions of long occupation, permanent developments, and facilitation of water and electricity connections were fatal. His fraud allegation was unplead and unproved. The claim was allowed: the plaintiffs declared owners of one acre by adverse possession, to be excised and registered in their favour, with the Deputy Registrar empowered to execute documents in default. Costs to the plaintiffs.

Key legal issues

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01

Whether the plaintiffs' entry was permissive (licence) or adverse

Holding

The entry was not permissive; the licence allegation was unsubstantiated and, the sale having been denied, entry was as of right.

Reasoning

The defendant alleged the plaintiffs were licencees but never stated the terms, conditions or duration of the licence, and never terminated it in testimony. Since the defendant denied any sale, permission could not be inferred. Occupation was open, continuous and visible for over 12 years with permanent developments done with the defendant's knowledge, inconsistent with his ownership rights.

p. 4
02

Whether the ingredients of adverse possession were proved

Holding

Yes - 12+ years of open, exclusive, uninterrupted possession with permanent developments proved on a balance of probabilities.

Reasoning

The plaintiffs occupied from 2007, fenced the portion, erected permanent buildings connected to water and electricity with the defendant's facilitation, and the defendant admitted over 12 years' occupation and never complained, objected or gave notice to vacate. Possession was nec vi, nec clam, nec precario.

p. 4

Legal principles established

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  • A party seeking adverse possession must prove non-permissive entry and occupation, exclusive, open and hostile possession without interruption for 12 years.
  • The plaintiff in adverse possession must show use of the land as of right, without force, secrecy or permission.
  • A party alleging fraud bears the burden of pleading and proving it.

Court orders

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  1. 1.The plaintiffs are declared to have acquired one acre out of L.R No. Kiirua/Naari/Maitei/1083 by virtue of adverse possession.
  2. 2.The said one acre be excised and the plaintiffs be registered as proprietors thereof.
  3. 3.In default of the defendant signing the subdivision and transfer forms, the Deputy Registrar of the court to execute them.
  4. 4.Costs to the plaintiffs.

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (4)

  • Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau
    (2011) eKLR
  • Francis Gicharu Kariri vs Peter Njoroge Mairu
    C.A Nairobi No. 293 of 2002
  • Kimani Ruchire vs Swift Rutherforld and Co. Ltd
    (1980) KLR 10
  • Arithi High Way Developers vs West End Butchery
    (2015) eKLR
Jurisdiction invoked
Section 38 of the Limitation of Actions Act and Order 37 Rule 7 Civil Procedure Rules

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, "Kirimi & another v M’Twerandu (Environment & Land Case 31 of 2020) [2022] KEELC 2648 (KLR)", Case Analysis (2022). Originationg Summons dated August 10, 2020 (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2648/eng@2022-07-13

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