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ELCDismissedEnvironment and Land Case Civil Suit 35 of 2018· [2022] KEELC 15013 (KLR)

Muriuki v Muriuki & another

Environment and Land Court
21 November 2022
EWE.K. Wabwoto
3,052 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a brother's claim to own family land through adverse possession because his occupation was shared and permitted.

What this practically means

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Executive summary

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The Applicant, elder brother to the two Respondents, brought an originating summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act seeking registration as proprietor of LR No 14225/48 by adverse possession, a declaration that the Respondents' title was extinguished, a permanent injunction, and alternatively payment of the market value of the property and his developments, or a declaration that the Respondents hold the land as trustees. The Respondents, who were registered as owners after a transfer from the parties' late father, opposed the claim, asserting the Applicant occupied the land with the family's consent and that other family members also resided there. Wabwoto, J framed two issues: whether the Applicant met the criteria of adverse possession, and the appropriate reliefs. The court restated the ingredients of adverse possession - actual, open, notorious, exclusive, continuous and non-permissive occupation for at least twelve years. It found the Applicant's occupation was not exclusive, since the parties' mother, a cousin and the 1st Respondent's son also lived on the land, and that the Applicant had been permitted to stay by the parties' late father, negating hostility. The 1st Respondent's residence in Germany did not amount to abandonment of possession. The claim for adverse possession therefore failed and, with it, all the reliefs sought. The originating summons was dismissed in its entirety with each party bearing their own costs in view of the sibling relationship.

Key legal issues

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01

Whether the Applicant proved exclusive possession of the suit property

Holding

The Applicant failed to prove exclusive possession since other family members, including the 1st Respondent's son and a cousin, reside on the property

Reasoning

The court found the parties are siblings and that apart from the Applicant, the mother of the parties, a cousin James Ngari and his family, and the 1st Respondent's son also reside on the land. Occupation shared with others cannot be exclusive, an essential ingredient of adverse possession.

p. 6
02

Whether the Applicant's occupation was permissive rather than adverse

Holding

The Applicant was permitted to stay on the property by the parties' late father, defeating the hostility requirement

Reasoning

The 1st Respondent testified that the Applicant was given permission by their late father to live on the property, and she had no problem with him staying. Permission negates the non-permissive, hostile character of possession required for adverse possession.

p. 6
03

Whether the 1st Respondent's residence in Germany amounted to abandonment of possession

Holding

Residence abroad does not imply abandonment of entitlements; constructive possession by the registered owner suffices

Reasoning

Relying on Chairman Board of Governors Muranga College of Technology v Julius Ngigi Munjuga quoting Alfred Welimo v Mulaa Sumba Barasa, the court held that abandonment of use by the owner does not by itself establish adverse possession, so the 1st Respondent's absence in Germany did not cede possession.

p. 6

Legal principles established

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  • To succeed in adverse possession a claimant must prove exclusive, continuous, open and non-permissive occupation for at least 12 years
  • The adverse possessor must use the land as though it is solely his own before the limitation period begins to run
  • Adverse possession is not established merely because the owner has abandoned possession of the land

Court orders

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  1. 1.The originating summons dated January 29, 2018 is dismissed in its entirety
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 Rule 7
  • Limitation of Actions ActSection 38(1) and (2)
  • Limitation of Actions ActSections 7, 12, 13 and 17

Cases cited (14)

  • Samuel Miki Waweru v Jane Njeri Richu
    Civil Appeal No 122 of 2001 (UR)

    Requirements for adverse possession

  • Kasuve v Mwaari Investments Limited & 4 others
    1 KLR 184

    Adverse possession principles

  • Jandu v Kirpal & Another
    (1975) EA 225

    Adverse possession principles

  • Kenya Power & Lighting Co. Ltd v Sheriff Molana Habib
    (2018) eKLR

    Injunction principles

  • Giella v Cassman Brown
    (1973) EA 358

    Conditions for grant of injunction

  • Nguruman Limited v John Bonde Nielson & 2 others
    CA No 77 of 2012 (2014) eKLR

    Conditions for grant of injunction

  • Bernard Ndungu v David Komu Mukumbu
    (2021) eKLR

    Exclusivity of possession requirement

  • Titus Mutuku Kasuve v Mwaani Investment Ltd & 4 others
    (2004) eKLR

    Constructive possession by registered owner

  • Peter Mbiri Michuki v Samwel Mugo Michuki
    (2014) eKLR

    Ingredients of adverse possession

  • Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 others
    [2018] eKLR

    Conditions to prove entitlement to adverse possession

  • Mbira v Gachuhi
    (2002) 1 EALR 137

    Non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period

  • Harison Kaara v Gichobi Kaara & Another
    (1997) eKLR

    Adverse possessor must use land as solely his own

  • Chairman Board of Governors Muranga College of Technology Primary School v Julius Ngigi Munjuga
    Nyeri Civil Appeal No 153 of 2017 (2018) eKLR

    Abandonment by owner does not establish adverse possession

  • Alfred Welimo v Mulaa Sumba Barasa
    CA No 186 of 2011

    Adverse possession not established merely by owner's abandonment

Jurisdiction invoked
Original jurisdiction under Order 37 Rule 7 of the Civil Procedure Rules, 2010 and Section 38 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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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muriuki v Muriuki & another", Case Analysis (2022). Environment and Land Case Civil Suit 35 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15013/eng@2022-11-21

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