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ELCDismissedOriginating Summons dated 16th December 2009· [2022] KEELC 3165 (KLR)

Kariuki v Muniu (Environment and Land Case Civil Suit 642 of 2009) [2022] KEELC 3165 (KLR)

Environment and Land Court
5 May 2022
5,261 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a grandson's adverse possession claim because living on family land with permission is not the same as hostile occupation.

What this practically means

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Executive summary

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The Plaintiff, Samuel Njung'e Kariuki, brought an Originating Summons under sections 37 and 38 of the Limitation of Actions Act seeking declarations that he had acquired parcels Kabete/Kibichiku/1189, 1190, 1191 and 1192 by adverse possession since 1990, together with permanent injunctions and an order compelling transfer. He claimed the land belonged to his grandmother, Grace Wanjiru Wangendo, who sold one acre to the Defendant; he contended he had cultivated the land openly and continuously. The Defendant, Francis Muturi Muniu, registered proprietor since 19th January 1994, responded that he purchased the acre in 1983, took possession, and that his wife cultivated it until the Plaintiff's family turned hostile; he had obtained judgment and a decree in HCCC 2213 of 1999 against the Plaintiff's mother and relatives. The suit was canvassed by viva voce evidence. The court framed four issues, chiefly whether the Plaintiff's occupation was adverse and whether he met the legal requirements for adverse possession. Applying Mbira v Gichuhi, the court held the Plaintiff's entry and user were wholly attributable to his kinship with the vendor grandmother and therefore permissive, not adverse. It further held that the decree in HCCC 2213 of 1999 interrupted time against persons claiming under the defendants in that suit, including the Plaintiff, and that his possession was not peaceful, open or continuous, evidenced by contested burials and physical confrontations. The Originating Summons was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the Plaintiff's entry and occupation was adverse or referable to a lawful/permissive title

Holding

The Plaintiff's entry, possession and user was wholly attributable to his kinship as grandchild of Grace Wanjiru Wangendo and could not found adverse possession

Reasoning

Possession that can be referred to a lawful title is never adverse. The Plaintiff entered and remained on the land as the grandson of the vendor, so his occupation was consensual/familial rather than hostile. Kuloba J's statement in Mbira v Gichuhi that possession arising from lineal consanguinity and affinity does not ripen into adverse possession was applied to the facts.

p. 8
02

Whether the decree in HCCC 2213 of 1999 interrupted the running of time in the Plaintiff's favour

Holding

Yes; the Defendant's assertion of title in HCCC 2213 of 1999 interrupted time against the Plaintiff as a person claiming under the defendants in that suit through filial relationship

Reasoning

The Defendant obtained judgment and a decree on 1st August 2003 asserting title to the same parcels. The Plaintiff was the son of the 2nd defendant in that suit and fell within the description of their servants or agents by filial relationship. Filing of that suit broke the continuity of adverse possession, so the statutory 12-year period had not accrued when this suit was filed in December 2009.

p. 9
03

Whether the Plaintiff proved peaceful, open and continuous possession

Holding

No; the evidence disclosed disputes, forced burials, physical confrontations and criminal complaints, showing the possession was not peaceful or quiet

Reasoning

Both burials on the land took place despite the Defendant's protest and against the Chief's orders, and there were physical confrontations between the Plaintiff and the Defendant's sons leading to criminal charges. The court also found the Defendant lacked free access, so his failure to re-enter did not establish the Plaintiff's adverse possession.

p. 9
04

Costs

Holding

Costs of the suit were awarded to the Defendant

Reasoning

Having failed to establish a prima facie case on a balance of probabilities, the Plaintiff's Originating Summons was dismissed with costs following the event in favour of the successful registered proprietor.

p. 10

Legal principles established

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  • Permissive or consensual occupation by virtue of lineal consanguinity and affinity does not give rise to adverse possession
  • A party asserting title through a prior suit interrupts the running of limitation time against persons claiming under the defendants in that suit
  • A claimant must prove possession that is peaceful, open and continuous, not mere possession

Court orders

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  1. 1.The Plaintiff's Originating Summons is dismissed
  2. 2.Costs of the suit awarded to the Defendant

Authorities

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Legislation

  • Limitation of Actions Actsections 37 and 38
  • Civil Procedure RulesOrder XXXVI rule 3D
  • Civil Procedure ActSection 3A

Cases cited (7)

  • James Maina Kirunja vs Gerald Kwendaka
    [2018] e KLR
  • Jennifer Gikui Kiani vs Solomon Ndotono & Another
    [2013] e KLR
  • Tools and Paints Hardware Ltd vs Ramco Hardware Ltd
    [2010] e KLR
  • Wambugu vs Njuguna
    [1983] KLR 172
  • Mbiru vs Gichohi
    [2002] 1 E.A.
  • Christopher Kioi & Others vs Winnie Mukolwe & Others
    [2018] e KLR
  • John Kinyua vs Simon Gitau
    C.A 265 of 2005
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act (Chapter 22), Order XXXVI rule 3D of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Kariuki v Muniu (Environment and Land Case Civil Suit 642 of 2009) [2022] KEELC 3165 (KLR)", Case Analysis (2022). Originating Summons dated 16th December 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3165/eng@2022-05-05

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