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ELCPartially AllowedOriginating Summons dated 25/05/2018· [2022] KEELC 2844 (KLR)

Gichimu & 3 others v Sterling Developers Limited (Environment and Land Case Civil Suit 422 of 2018) [2022] KEELC 2844 (KLR)

Environment and Land Court
11 May 2022
3,083 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court handed Nairobi land to occupants who proved 12 years of open, uninterrupted possession, even though the registered owner never defended the case.

What this practically means

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Executive summary

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The Applicants brought an Originating Summons dated 25/05/2018 under section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, claiming to have acquired LR 18111/470 Nairobi by adverse possession. They sought a declaration of prescriptive rights after over 12 years' occupation, an order directing the Land Registrar to substitute their names for the Respondent's, and costs. The Respondent, Sterling Developers Limited, was served by substituted means through the Star newspaper but neither entered appearance, filed a defence, nor filed submissions, leaving the Applicants' case uncontroverted. The 1st Applicant testified that the Applicants occupied the unoccupied land in 1990, erected semi-permanent and later permanent structures, and planted trees, enjoying quiet and undisturbed occupation. The court framed two issues: whether the threshold for adverse possession was met, and whether the Applicants were entitled to ownership. Although the court found no evidence proving possession began in 1990, it computed limitation from 14/01/2005 when the Respondent acquired title, finding the Applicants had by then enjoyed over 12 years (13 years by filing) of open, quiet, uninterrupted and non-permissive possession. The land was also adequately identified through the title deed extract showing registration in the Respondent's name. Judgment was entered for the Applicants in terms of prayers (1) and (2); costs were not awarded because the Respondent did not participate. Dated, signed and delivered on 11 May 2022 by Mogeni J.

Key legal issues

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01

Whether the Applicants met the threshold for adverse possession

Holding

Yes. Though possession from 1990 was not proved by evidence, time was computed from the Respondent's acquisition of title on 14/01/2005, giving over 12 years of open, quiet and uninterrupted possession by the date of filing.

Reasoning

The court held that mere assertion of possession in 1990 was insufficient without supporting evidence. However, the Certificate of Title (Plaintiff's Exhibit 2) showed the Respondent obtained title on 14/01/2005. Since the Applicants were in undisturbed occupation with no eviction attempt by the Respondent, limitation ran from that date, amounting to 13 years' possession by the time the suit was filed, satisfying the 12-year requirement under sections 7 and 13 of the Limitation of Actions Act.

p. 6
02

Whether the Applicants are entitled to ownership of the suit land

Holding

Yes. The land was clearly identified, registered in the name of Sterling Developers Limited, and the Applicants proved entitlement to ownership by adverse possession on a balance of probabilities.

Reasoning

Relying on Wilson Kazungu Katana and Order 37 rule 7 of the Civil Procedure Rules, the court found the suit land clearly identified through the attached title deed extract, which showed registration in the Respondent's name. The evidence and photos confirmed the Applicants' occupation. The court thus found the Applicants entitled to ownership of LR 18111/470 Nairobi and entered judgment in terms of prayers (1) and (2).

p. 7

Legal principles established

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  • To acquire title by adverse possession to land with a known owner, the owner must have lost his right by dispossession or discontinuance of possession, through acts inconsistent with his enjoyment of the soil.
  • Proof of adverse possession is assessed by whether the title holder has been dispossessed or discontinued possession for the statutory period, not merely whether the claimant has been in possession for the requisite years.
  • Adverse possession requires non-permissive, non-consensual, actual, open, notorious, exclusive and uninterrupted occupation for 12 years - nec vi nec clam nec precario.
  • Identification of the land in the adverse possessor's possession is an important and integral part of proving adverse possession, reinforced by Order 37 rule 7 requiring a title deed extract.

Court orders

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  1. 1.Judgment entered for the Applicants against the Respondent in terms of the claim contained in the Originating Summons dated 25/05/2018
  2. 2.The Applicants' claim allowed in terms of prayers No. (1) and (2) of the Originating Summons
  3. 3.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSections 9, 10, 11 and 12
  • Limitation of Actions ActSection 37
  • Civil Procedure Rules 2010Order 37, including rule 7

Cases cited (8)

  • Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 others
  • Peter Okoth v Ambrose Ochido Andajo & Benedict Odhiambo Oketch
    (2021) eKLR
  • Wambugu vs Njuguna
    [1983] KLR 172
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR, Malindi App No. 56 of 2014
  • Mbira v Gachuhi
    (2002) 1 EALR 137
  • Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others
    [2018] eKLR
  • Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein & Another
    [2015] eKLR
  • Githu v Ndele
    [1984] KLR 776
Jurisdiction invoked
Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules 2010

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, "Gichimu & 3 others v Sterling Developers Limited (Environment and Land Case Civil Suit 422 of 2018) [2022] KEELC 2844 (KLR)", Case Analysis (2022). Originating Summons dated 25/05/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2844/eng@2022-05-11

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