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ELCAllowedOriginating Summons dated November 28, 2013· [2022] KEELC 3194 (KLR)

Muchau & 2 others v Kirehu (Environment & Land Case 1473 of 2013) [2022] KEELC 3194 (KLR)

Environment and Land Court
28 April 2022
1,142 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nairobi ruled that a family who openly occupied land for over 40 years became its lawful owners through adverse possession.

What this practically means

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Executive summary

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The plaintiffs, sons of the late Paul Muchau, brought an Originating Summons under Order 37 rule 7(1) of the Civil Procedure Rules and section 38 of the Limitation of Actions Act claiming that they had been in adverse possession since July 1977 of 1.64 acres out of a 3-acre portion of Land Reference Number Limuru/Ngecha/50 'A' registered in the name of the defendant, Gichamu Kirehu. Their evidence was that their father bought the 1.64 acres from the defendant in 1964 under a written (Gikuyu-language) sale agreement produced in evidence, took possession, and on his death in 1977 the plaintiffs continued in open, continuous and exclusive possession without any challenge or interference by the defendant, whom they had not seen since 1964. The defendant never entered appearance; substituted service by advertisement in the Standard Newspaper was ordered in April 2014. The court heard viva voce evidence from the first plaintiff and, the evidence being unchallenged, applied the settled principles for adverse possession drawn from Wilson Kazungu Katana, Kasuve v Miwani Investments and related Court of Appeal authority: clear possession, occupation without the owner's consent, uninterrupted occupation exceeding 12 years, and production of an extract of the title. Finding all conditions met, Komingoi J held that the plaintiffs had acquired rights superior to those of the registered proprietor and entered judgment for the plaintiffs: a declaration of adverse possession since July 1977, entitlement to be registered as proprietors in common in equal shares of 1.64 acres to be excised from the defendant's share, and costs of the suit.

Key legal issues

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01

Principles governing a claim for adverse possession

Holding

The court applied four conditions: clear possession; occupation without the owner's consent; uninterrupted continuous occupation for more than 12 years; and production of an extract copy of the title under litigation. The plaintiffs' undisputed facts satisfied all four.

Reasoning

The court recited the standard principles for adverse possession and the Court of Appeal authorities, then found the plaintiffs' facts undisputed and unchallenged. The plaintiffs (or their father from 1964) had been in open, continuous and exclusive occupation since at least 1977, well beyond 12 years, without interference from the defendant.

02

Whether title of the registered proprietor is extinguished and the plaintiffs entitled to registration

Holding

The plaintiffs acquired rights over the 1.64 acres superior to those of the registered proprietor and are entitled to be registered as proprietors in common in equal shares of land to be excised from the defendant's share.

Reasoning

Having found over 12 years of open, uninterrupted, continuous and adverse possession, the court held that the plaintiffs' rights had crystallised over those of the registered proprietor, justifying the declaratory and registration orders under section 38 of the Limitation of Actions Act.

Legal principles established

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  • To be entitled to land by adverse possession the claimant must prove exclusive, open and uninterrupted possession for 12 years, either after dispossessing the owner or on discontinuation of possession by the owner.
  • Possession claimed must be as of right, nec vi, nec clam, nec precario, continuous, and with the owner's actual or constructive knowledge.

Court orders

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  1. 1.A declaration that the plaintiffs have since July 1977 been in adverse possession of 1.64 acres out of a portion of 3 acres in Land Parcel No Limuru/Ngecha/50 'A' registered in the name of the defendant
  2. 2.That the plaintiffs are entitled to be registered as proprietors in common in equal shares of 1.64 acres to be excised out of the defendant's share of 3 acres in the said parcel in place of the defendant
  3. 3.That the plaintiffs do have costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rule 7(1)
  • Limitation of Actions Actsection 38

Cases cited (5)

  • Wilson Kazungu Katana & 101 others v Salim Adalla Bakshwein & another
    [2015] eKLR
  • Kasuve v Miwani Investments Ltd & 4 others
    [2004] eKLR
  • Peter Mberi Michuki v Samuel Mugo Michuki
    Civil Appeal No 22 of 2013
  • Francis Gicharu Kariuki v Peter Maina
    Civil Appeal No 2930 of 2002 Nairobi
  • Kimani Ruchire v Swift Rutherford Co Ltd
    [1980] KLR
Jurisdiction invoked
Order 37 rule 7(1) of the Civil Procedure Rules and section 38 of the Limitation of Actions Act (Cap 22)

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, "Muchau & 2 others v Kirehu (Environment & Land Case 1473 of 2013) [2022] KEELC 3194 (KLR)", Case Analysis (2022). Originating Summons dated November 28, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3194/eng@2022-04-28

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