Karari v Njuguna (Environment and Land Miscellaneous Application 69 of 2019) [2022] KEELC 3860 (KLR)
The bottom line
#A Kenyan court gave a buyer ownership of land he paid for in 1971, ruling that 12 years of open possession extinguished the owner's title.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established title by adverse possession
Yes. The plaintiff purchased the land in 1971, paid the purchase price, and took open, continuous and uninterrupted possession; time ran from 1971/2 and title matured by 1983/4, dispossessing the paper owner.
The court found the 1971 written sale agreement conformed to section 3(3) of the Law of Contract Act and was not impeached by the defendant's forgery allegations. Citing Public Trustee v Wanduru, time began running from payment of the purchase price in 1971/2, and after twelve years the plaintiff's title matured. The defendant's allegation that occupation was permissive was rejected as unsupported in the face of a written sale agreement. The defendant's title, acquired in 2019 from the estate, was encumbered by the plaintiff's accrued right.
Whether the sale agreement was a forgery
No. The defendant failed to tender evidence capable of impeaching the agreement.
The defendant alleged the 1971 agreement and acknowledgements of purchase price were forgeries because witness Chege Njuguna was illiterate and could only thumb print. The court found the agreement in writing, signed and witnessed by two witnesses, with letters dated 29/11/1971 and 21/12/1971 evidencing receipt of the purchase price in installments. The court held the agreement conformed to section 3(3) of the Law of Contract Act and the defendant produced no evidence to impeach it.
Whether the plaintiff's occupation was permissive
No. The permission defence was unsupported in the face of a written agreement of sale.
The defendant and his witness admitted the plaintiff was in occupation but claimed it was with the family's permission to tend the land and preserve its fertility. The court held that consent or permission destroys adversity of possession, but found this proposition unsupported given the written sale agreement under which the plaintiff entered as purchaser for value. The defendant also admitted he had taken no steps to remove the plaintiff and never occupied the land himself.
Legal principles established
#- Adverse possession calculated from the date of payment of the purchase price to the full span of twelve years where the purchaser takes possession
- A claim in adverse possession is destroyed by the consent and/or permission of the registered owner
Court orders
#- 1.The plaintiff is declared to have become entitled to land parcel number Ngenda/Kirai/T.59 by way of adverse possession
- 2.The defendant's title to the said land is declared extinguished and the plaintiff to be registered as proprietor of the suit land
- 3.The defendant to execute all the necessary documents to effect the transfer of the said land to the plaintiff, and in default the Hon Deputy Registrar of the court to execute the necessary documents
- 4.Costs of the suit awarded to the plaintiff
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act, Cap 22, read with Order 37 rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karari v Njuguna (Environment and Land Miscellaneous Application 69 of 2019) [2022] KEELC 3860 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3860/eng@2022-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.