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ELCDismissedEnvironment & Land Case 29 of 2008· [2022] KEELC 13472 (KLR)

Kirima & another v M’Ikiugu (Administrator of M’Ikiugu Mburugu) - Deceased & another

Environment and Land Court
12 October 2022
5,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiffs, by an amended originating summons dated September 16, 2017, sought a declaration of adverse possession over three acres of LR No Abogeta/U-Kiringa/158, a declaration that the 1st defendant's late father held the land in trust for them, a declaration that the alienation to the 2nd defendant was void, and an order for transfer. The defendants denied occupation and trust; the 1st defendant acquired the land by transmission after his father died in 1960 and sold it to the 2nd defendant, who claimed to be an innocent purchaser for value after due diligence. The court framed five issues: adverse possession, the effect of the sale and transfer, innocent purchaser status, entitlement to the prayers, and customary trust. Applying Court of Appeal authority, it held that the plaintiffs failed to establish the date of entry (never pleading their ages or dates of majority), failed to identify with exactitude the land and the extent of occupation, produced no survey maps, photographs or Registrar's reports, and that the tribunal case, complaints to the chief and District Officer, and attempts to re-establish the boundary amounted to assertion of the registered owner's rights, stopping time. The trust claim failed for want of evidence of its nature. The 2nd defendant proved due diligence, good faith and consideration, and the plaintiffs failed to prove any irregularity in the transfer. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiffs proved adverse possession

Holding

No - they failed to establish the date of entry, the exact identity, locality and extent of the land occupied, and peaceful hostile occupation was negated by the owner's assertion of rights

Reasoning

The plaintiffs pleaded occupation since birth but never pleaded their ages or dates of majority, which are necessary for time to run. They produced no survey maps, photographs or Registrar's reports to fix their developments on LR No 158 as opposed to their father's LR No 203. The tribunal case, complaints to the chief and District Officer, and attempts to re-establish the boundary amounted to assertion of ownership rights stopping time.

p. 8
02

Whether the plaintiffs proved a customary or other trust

Holding

No - the trust was pleaded in the alternative but its nature was never specified or proved to the required standard

Reasoning

A trust is not implied by the court unless there was an intention to create one, and only in absolute necessity cases may a court presume a trust. The party relying on a trust bears the onus of proving it through evidence. The plaintiffs merely pleaded trust without tendering evidence of its nature or applicability.

p. 8
03

Whether the 2nd defendant was an innocent purchaser for value

Holding

Yes - he undertook due diligence, found no occupation, paid consideration and obtained title procedurally in good faith

Reasoning

The 2nd defendant testified he purchased through his brother, conducted due diligence, found no buildings, farming or occupation, and only encountered the dispute when taking vacant possession in 2013. The plaintiffs bore the onus under Section 107 of the Evidence Act to prove irregularities in the transfer and failed to do so. His rights are protected under the Land Registration Act.

p. 9

Legal principles established

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  • A party seeking adverse possession must prove open occupation without secrecy, force or licence, with intention to possess and apparent dispossession of the owner
  • Time under adverse possession stops running when the owner asserts his rights or the adverse possessor admits the owner's right
  • Identification of the land in possession is an integral part of proving adverse possession
  • A trust cannot be implied by the court absent an intention to create one; the party relying on a trust must prove it through evidence
  • Equitable rights of an adverse possessor bind the land and are not defeated by transmission or subsequent transfer, but a bona fide purchaser without notice of occupation takes free of them

Court orders

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  1. 1.The plaintiffs' claim is dismissed
  2. 2.Costs of the suit awarded to the defendants

Authorities

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Legislation

  • Evidence ActSection 107
  • Land Registration ActSections 18-20
  • Land Registration ActSections 25 & 26
  • Land Registration ActSections 27 & 28

Cases cited (21)

  • Wilson K Chepyegon vs Kimosop Chepyegon
    (2012) eKLR

    A party seeking adverse possession must establish the date of entry into the land for time to start running

  • Celina Muthoni Kithinji vs Safiya Binti Swaleh & 8 others
    (2018) eKLR

    Cited by plaintiffs on adverse possession

  • Mtana Lewa vs Kahidi Ngala Mwangandi
    (2005) eKLR

    Ingredients of adverse possession; need for scientific evidence of acreage claimed

  • David Munene Wamwati & 4 others vs Registered Trustees of Anglican Church of Kenya & another
    Nyeri Court of Appeal Civil Appeal No 36 of 2015

    Salient features of adverse possession and its morality and justice

  • Joseph Kithinji M’Eringo & another vs Christine N Mbiti
    Nairobi Court of Appeal Civil Appeal No 83 of 2016

    Fencing off or cultivation as best evidence of possession; equitable rights of adverse possessor bind the land

  • Gabriel Mbui vs Mukindia Maranya
    (1993) eKLR

    Key elements of adverse possession

  • Mate Gitahi vs Jane Kaburu Muga & others
    (2015) eKLR

    Open occupation without secrecy, force or licence with intention to possess

  • Joseph Gachima Kiritu vs Lawrence Munyambu Kabura
    (1996) eKLR

    Time stops running when owner asserts rights or possessor admits owner's right

  • Public Trustee vs Wanduru Ndegwa
    (1984) eKLR

    A mere formal entry suffices to vest possession in the true owner and stop time

  • Daniel Kimani Ruchine & others vs Swift Rutherford Co Ltd & another
    (1977) eKLR

    Assertion of rights by the owner stopping time

  • Kuria Kiarie & 2 others vs Sammy Magera
    (2018) eKLR

    Acts of assertion of ownership rights by the registered owner

  • Githu vs Ndete
    (1984) KLR 776

    Identification of land in possession is integral to proving adverse possession

  • Wilson Kazungu Katana & 101 others vs Salim Abdalla Bakshwein & another
    (2015) eKLR

    Identification of land in adverse possession

  • Kweyu vs Omuto
    Court of Appeal Civil Appeal No 8 of 1990

    Whether possession is adverse is a legal conclusion drawn from findings of fact

  • Alice Wairimu Macharia vs Kirigo Philip Macharia
    (2019) eKLR

    A trust cannot be implied absent intention to create one

  • Peter Ndungu Njenga vs Sophia Watiri Ndungu
    (2000) eKLR

    Only in absolute necessity cases may a court presume a trust

  • Juletabi Africa Adventure Ltd & another vs Christopher Michael Lockley
    (2017) eKLR

    Onus on the party relying on a trust to prove it through evidence

  • Isack Kiebia M’Inanga vs Isaaya Theuri M’Lintari & another
    (2015) eKLR

    Proof of customary trust to the required standard

  • Mwangi & another vs Mwangi
    (1986) KLR 328

    Transmission and subsequent transfer does not defeat equitable rights of an adverse possessor

  • Lawrence P Mukiri Mungai Attorney Francis Muroki Mwaura vs AG & 4 others
    (2017) eKLR

    Conduct inconsistent with bona fide purchaser status

  • Katende vs Harindar & Co Ltd
    (2008) 2 EA 173

    Bona fide purchaser for value without notice

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (claim for adverse possession and trust over land)

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, "Kirima & another v M’Ikiugu (Administrator of M’Ikiugu Mburugu) - Deceased & another", Case Analysis (2022). Environment & Land Case 29 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13472/eng@2022-10-12

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