Kangethu (Suing as the Personal Representative of the Late James Kangethu Njoroge) v Public Trustee as the Administrator Of the Estate of Giovanni Theodore Sovic (Deceased) & 3 others (Land Case 73 of 2017) [2022] KEELC 3985 (KLR)
The bottom line
#A Kenyan court confirmed that someone who pays for land and openly occupies it for over 12 years becomes its legal owner, wiping out the registered owner's title.
What this practically means
#Executive summary
#Key legal issues
#Whether title by adverse possession was established
The court found the plaintiff proved possession since 3 May 1973 under a purchase agreement, openly, peacefully and without interruption for well over 12 years, extinguishing the registered owner's title.
PW1 testified he bought the land from Giovani Theodore Sovic, paid the purchase price and entered possession on 3/5/1973 with the owner's knowledge, evidenced by a note and correspondence with the owner's advocates and the Public Trustee. Applying sections 7, 13, 17 and 38 of the Limitation of Actions Act and the Court of Appeal authorities, the court held the 12-year period ran from payment and possession, extinguishing the registered owner's title.
Whether the charge registered as No 13 should be discharged
The court ordered the discharge of the charge registered as No 13 against the title.
Having found title by prescription, the plaintiff was entitled to the ancillary relief sought in the chamber summons for discharge of the charge so that she could be registered as proprietor. The defendants called no evidence and filed no submissions.
Legal principles established
#- Adverse possession runs from the date of payment of the purchase price where a purchaser takes possession, because from that date the true owner is dispossessed.
- The burden of proving adverse possession lies on the claimant, on a balance of probabilities, showing possession open, peaceful and without the owner's consent for an uninterrupted 12 years (nec vi, nec clam, nec precario).
- A claim of adverse possession can only be maintained against a registered owner, and time under section 7 of the Limitation of Actions Act runs only against a registered owner.
Court orders
#- 1.A declaration that Jecinta Kagure Kangethu has acquired land parcel No LR No 6157 by way of adverse possession and is entitled to be registered as proprietor by prescription
- 2.The charge registered as No 13 against the title to LR No 6157 be discharged forthwith
- 3.The costs of the suit be borne by each party
- Jurisdiction invoked
- Sections 7, 13, 17 and 38(1) of the Limitation of Actions Act (claim for registration as proprietor by adverse possession of registered land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kangethu (Suing as the Personal Representative of the Late James Kangethu Njoroge) v Public Trustee as the Administrator Of the Estate of Giovanni Theodore Sovic (Deceased) & 3 others (Land Case 73 of 2017) [2022] KEELC 3985 (KLR)", Case Analysis (2022). ELC No 14 of 2013 (orig. chamber summons dated April 13, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3985/eng@2022-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.