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ELCPartially AllowedELC No. 1314 of 2013 (with Originating Summons ELC No. 623 of 2009)· [2022] KEELC 3491 (KLR)

Koinange & 2 others (Suing as the Administrators of the Estate of Dinah Muthoni Mbuthia) v M’Ikunyua & 9 others (Sued as the Officials and Members of Githurai Mwihoti Settlement Society and all other persons unknown to the Plaintiffs who are illegally Occupying L.R No. 3811/6 (Original Number 3811/1/2) (Environment and Land Case Civil Suit 1314 of 2013 & Civil Suit 623 of 2009 (Consolidated)) [2022] KEELC 3491 (KLR)

Environment and Land Court
19 July 2022
9,704 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed registered owners' title, dismissed an adverse possession claim, evicted the occupiers, and awarded Kshs.20 million in damages.

What this practically means

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Executive summary

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This Environment and Land Court judgment at Nairobi, delivered by Oguttu Mboya J on 19 July 2022, determined consolidated proceedings: a plaint (ELC No. 1314 of 2013) by administrators of the estates of Dinah Muthoni Mbuthia and Dr. Arthur Samuel Mbuthia seeking eviction, injunctions and damages, and an Originating Summons (ELC No. 623 of 2009) by members of Githurai Mwihoti Settlement Society claiming title by adverse possession. The court framed three issues: ownership of L.R No. 3811/6, accrual of adverse possessory rights, and reliefs. On the first issue, the court held the property lawfully reverted to Dinah Muthoni Mbuthia and David Gitau Mbuthia on 12 March 2012 following the judgment of Musinga J on 7 November 2011 declaring the City Council of Nairobi's auction unlawful, vesting indefeasible rights under Sections 24 and 25 of the Land Registration Act. On adverse possession, the court found the originating summons was directed at former registered owners never amended to claim against the joined administrators, and DW1 admitted occupation was with the owner's permission, which is fatal to hostile occupation; the burden of proof was also not discharged. The court found the Defendants' occupation constituted trespass actionable per se and awarded general damages of Kshs.20,000,000, but refused mesne profits (Kshs.103,680,000) and punitive damages (Kshs.500,000) as unpleaded and unproved, holding submissions cannot replace evidence. Final orders granted a declaration of exclusive entitlement, 120 days to vacate with liberty to evict under Sections 152E and 152G of the Land Act, a permanent injunction, damages with interest, dismissal of the originating summons, and costs to the Plaintiffs.

Key legal issues

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01

Ownership of the suit property and entitlement to vacant possession

Holding

The property lawfully belongs to the registered proprietors Dinah Muthoni Mbuthia and David Gitau Mbuthia following the reversal of the unlawful auction by the City Council of Nairobi; the Plaintiffs as administrators are entitled to exclusive possession.

Reasoning

The property was sold in an unlawful auction by the City Council of Nairobi, which the High Court in HCC Misc. Applications 1264 of 1994 and 938 of 1995 declared illegal and void by judgment of 7 November 2011. Title was reverted by transmission on 12 March 2012 (Entry No. 21). Under Sections 24 and 25 of the Land Registration Act, the registered proprietors hold inviolable and indefeasible rights, extended to their administrators.

p. 10
02

Whether the Defendants acquired title by adverse possession

Holding

No adverse possession was established; the claim fails both on pleadings and on the permissive nature of occupation.

Reasoning

The originating summons sought declarations only against Joseph Thugo, David Kiarie Waiya and Silas Kinyanjui Kimemia, who ceased to be registered proprietors after the 2011 judgment, and was never amended to claim against the joined 4th and 5th Defendants. Further, DW1 admitted entry and occupation with the consent and permission of the landowner, which is fatal to adverse possession, and the Defendants failed to discharge the burden of proof.

p. 15
03

Trespass and general damages

Holding

Trespass is actionable per se and the Plaintiffs are entitled to general damages of Kshs.20,000,000, but mesne profits and punitive damages claims fail as unpleaded and unproved.

Reasoning

The Defendants admitted occupation without lawful rights, constituting trespass under Section 3(1) of the Trespass Act. Quantum was assessed having regard to the size of the property and the duration of deprivation since 12 March 2012. The mesne profits and punitive damages claims were raised only in submissions without pleading or evidence, and submissions cannot replace evidence.

p. 16

Legal principles established

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  • A claim of adverse possession cannot succeed where possession is held with the permission of the owner; possession does not become adverse before the end of the period for which permission to occupy has been given.
  • Parties are bound by their pleadings; a court cannot decree reliefs not anchored on the pleadings, and submissions cannot take the place of evidence.
  • Registration of a person as proprietor of land vests absolute ownership and indefeasible rights under Sections 24 and 25 of the Land Registration Act.
  • Mesne profits must be specifically pleaded and proved like special damages.

Court orders

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  1. 1.Declaration that the Plaintiffs are entitled to exclusive and absolute occupation, possession and use of L.R No. 3811/6 (Original Number 3811/1/2), Certificate of Title No. I.R No 16024, to the exclusion of the Defendants.
  2. 2.Defendants ordered to vacate and hand over the suit property within 120 days from the date of delivery of the judgment.
  3. 3.In default, the Plaintiffs at liberty to evict the Defendants in compliance with Sections 152E and 152G of the Land Act, No. 6 of 2012.
  4. 4.Eviction costs and charges to be certified by the Deputy Registrar and chargeable on the Defendants.
  5. 5.Permanent injunction restraining the Defendants, their agents, servants and anyone claiming under them from re-entering, trespassing onto or interfering with the Plaintiffs' rights over the suit property.
  6. 6.General damages of Kshs.20,000,000 awarded to the Plaintiffs against the Defendants.
  7. 7.General damages to bear interest at court rates from the date of judgment until full settlement.
  8. 8.Originating Summons in ELC No. 623 of 2009 dismissed.
  9. 9.Costs of the suit and the Originating Summons awarded to the Plaintiffs, to be agreed and/or taxed by the Taxing Officer.

Authorities

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Legislation

  • Land Registration ActSections 24, 25, 28
  • Limitation of Actions ActSection 13(1)
  • Trespass ActSection 3(1)
  • Evidence ActSections 107, 109
  • Civil Procedure ActOrder 21, Rule 13
  • Land ActSections 152E, 152G
  • Registration of Titles ActChapter 281 (Laws of Kenya)

Cases cited (17)

  • Ocean View Ltd v Attorney General
    [2002] eKLR
  • Independent Electoral and Boundaries Commission v Steven Mutinda Mule & Others
    (2014) eKLR
  • Kweyu Vs Omutut
    [1990] KLR 709
  • Sisto Wambugu v Kamau Njuguna
    (1983) eKLR; 1982-88 1 KLR 217
  • Hughes v Griffin
    [1969] 1 WLR 23
  • Amos Wainaina v Belinda Murai
    [1976] Kenya LR 227
  • Hosea v Njiru & Others
    [1974] EA 526
  • Bridges v Mees
    [1957] 2 All ER 577
  • Jandu v Kirpal
    [1975] EA 225
  • Samuel Miki Waweru v Jane Njeri Richu
    CA No. 122 of 2001 (unreported)
  • Agnes Nyambura Munga v Lita Violet Shepard
    [2018] eKLR
  • Miller vs Minister of Pensions
    [1947]
  • Willesden Investments Limited vs. Kenya Hotel Properties Limited
    NBI H.C.C. No. 367 of 2000
  • Nakuru Industries Limited v S S Mehta & Sons
    [2016] eKLR
  • Karanja Mbugua & another v Marybin Holding Co. Ltd
    [2014] eKLR
  • Peter Mwangi Mbuthia & another versus Samow Edin Osman
    [2014] eKLR
  • Daniel Toroitich Arap Moi versus Mwangi Stephen Muriithi & another
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (ELC suit and Originating Summons for adverse possession)

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, "Koinange & 2 others (Suing as the Administrators of the Estate of Dinah Muthoni Mbuthia) v M’Ikunyua & 9 others (Sued as the Officials and Members of Githurai Mwihoti Settlement Society and all other persons unknown to the Plaintiffs who are illegally Occupying L.R No. 3811/6 (Original Number 3811/1/2) (Environment and Land Case Civil Suit 1314 of 2013 & Civil Suit 623 of 2009 (Consolidated)) [2022] KEELC 3491 (KLR)", Case Analysis (2022). ELC No. 1314 of 2013 (with Originating Summons ELC No. 623 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3491/eng@2022-07-19

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