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ELCDismissed· [2022] KEELC 3709 (KLR)

Irene Warue Ndwiga v Nancy Njoki Mwara (Environment & Land Case E001 of 2022) [2022] KEELC 3709 (KLR)

Environment and Land Court
30 June 2022
2,307 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that an adverse possession claim isn't barred by limitation periods, so the landowner's attempt to block the squatter's lawsuit failed.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Embu (A.K. Kaniaru J) on a preliminary objection dated 11 February 2022 raised by the defendant, Nancy Njoki Mwara, against an Originating Summons by the plaintiff, Irene Warue Ndwiga, claiming registration as owner of 0.20 Ha out of land parcel Kyeni/Mufu/10658 by adverse possession, based on a 2002 sale agreement with the defendant's late father's parcel, on which the plaintiff and her deceased husband allegedly paid Kshs 110,000 and took possession for over 20 years. The defendant objected that the suit offended Sections 4(a) (six years for contract) and 7 (twelve years for recovery of land) of the Limitation of Actions Act, the suit having been filed 20 years after the sale agreement. The plaintiff countered that her claim was not founded on contract nor for recovery of land, and that Section 7 in fact barred the defendant from recovering the land. Applying the Mukisa Biscuit test for preliminary objections, the court held the suit was anchored on adverse possession, not contract or recovery of land, and that if Section 7 applied at all it would operate against the defendant. The court found the objection misplaced, premised on a serious misapprehension of the law, and dismissed it, leaving the substantive adverse possession claim to proceed to trial. No costs order was made in the ruling.

Key legal issues

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01

Whether an adverse possession claim is barred by Section 4(a) of the Limitation of Actions Act as an action founded on contract

Holding

It is not; the claim does not seek enforcement of the sale agreement but registration as owner by adverse possession.

Reasoning

The court examined the pleadings and prayers and found the suit seeks a declaration of entitlement by adverse possession, not enforcement of the 2002 sale agreement or recovery of the purchase price. Section 4(a) bars actions founded on contract after six years, but this suit is not such an action. The defendant therefore misunderstood the relief sought, and the objection on this limb fails.

p. 4
02

Whether the adverse possession suit offends Section 7 of the Limitation of Actions Act

Holding

It does not; Section 7 bars actions to recover land, whereas this is a claim for declaration of ownership by adverse possession, and if anything the section would operate against the defendant as the registered proprietor.

Reasoning

The court held that the plaintiff was not bringing an action to recover land from the defendant; her claim was for adverse possession. The court accepted the plaintiff's submission that the twelve-year bar in Section 7 would apply to the defendant herself, who would be barred from recovering the parcel after effluxion of time, but deferred detailed comment to the substantive suit.

p. 4
03

Whether the preliminary objection was a competent pure point of law

Holding

It was misplaced and incompetent; the objection required factual inquiry into when time began to run.

Reasoning

Applying Mukisa Biscuit, a preliminary objection must rest on a pure point of law assuming pleaded facts correct. Here, the plaintiff contended the date time started running for adverse possession was a matter of evidence, meaning the objection could not dispose of the suit without ascertaining facts. The court concluded the defendant laboured under a serious misapprehension of the applicable law.

p. 4

Legal principles established

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  • A suit founded on adverse possession is neither an action on contract barred by Section 4(a) nor an action to recover land barred by Section 7 of the Limitation of Actions Act; limitation under those provisions would in fact run against the registered proprietor.
  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained.

Court orders

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  1. 1.The preliminary objection dated 11.2.2022 is dismissed for lacking merit

Authorities

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Legislation

  • Limitation of Actions ActSection 4(a)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 39
  • Civil Procedure RulesOrder 50 rule 4

Cases cited (5)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Maersk Kenya Limited Vs Murabu Chaka Tsuma
    Civil Appeal No. 209 of 2015
  • Kenya Power & Lighting Company Limited Vs Collins Agumba Aboge
    Homabay Civil Appeal No. 57 of 2015
  • Wilson Njoroge Kamau V Nganga Muceru Kamau
    [2020] eKLR
  • Kwetu v Omuntio
    CA Civil Appeal No. 8 of 1990
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims; determination of a preliminary objection raised under Sections 4(a) and 7 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, "Irene Warue Ndwiga v Nancy Njoki Mwara (Environment & Land Case E001 of 2022) [2022] KEELC 3709 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3709/eng@2022-06-30

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