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Case Brief · caselaw.co.ke
ELCPartially AllowedOriginating Summons dated July 21, 2021· [2023] KEELC 136 (KLR)

Richard Mulwa Musyoka v Samuel Kariuki Waithani & Joan Wangari Kariuki

Environment and Land Court
18 January 2023
2,450 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 awarded a buyer land through adverse possession after 19 years, but refused to enforce his oral purchase agreement because it was never written down.

What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons seeking declaration that he acquired Machakos/Matuu/3503 (0.10 Ha) by purchase or, alternatively, by adverse possession, rectification of the register, a permanent injunction, and an order for transfer. He claimed he purchased the land orally in February 2002 for Kshs 197,000 from Samuel Kariuki Waithani and Joan Wangari Kariuki, took immediate possession, and developed it with a residential home and a learning institution, enjoying open and exclusive possession for about 19 years. Service was by substituted advertisement; the Defendants, though registered proprietors, neither entered appearance nor filed a defence. The court, Nyukuri J, framed one issue: whether the Plaintiff was in adverse possession. The claim by purchase failed because the agreement was oral and unenforceable under Section 3(3) of the Law of Contract Act, which requires a written, signed and attested contract for dispositions of land. On adverse possession, applying Sections 7, 13, 17 and 38 of the Limitation of Actions Act and Section 28(h) of the Land Registration Act, and the principles in Kaswe v Mwaani Investments and Mtana Lewa v Kahindi Ngala Mwagandi, the court found the Plaintiff in open, continuous and exclusive possession since 2002, unrebutted by any challenge from the Defendants, whose title was extinguished after 12 years. Judgment was entered for the Plaintiff: declaration of adverse possession, rectification of the register, issuance of a fresh title, permanent injunction against the Defendants, and transfer, with the Deputy Registrar authorised to execute documents in default. However, the prayer for costs was refused as the Plaintiff did not show he had sought and been refused a transfer, and no order as to costs was made.

Key legal issues

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01

Whether the Plaintiff acquired the suit property by purchase

Holding

The claim by purchase failed because the sale was oral and no written contract was produced as required by Section 3(3) of the Law of Contract Act

Reasoning

The plaintiff admitted the 2002 purchase was by oral agreement. Section 3(3) of the Law of Contract Act bars any suit on a contract for disposition of an interest in land unless it is in writing, signed by all parties and attested. Without a written agreement there was no enforceable contract and no evidence the sale occurred, so that prayer failed.

p. 5
02

Whether the Plaintiff is in adverse possession of the suit property

Holding

Yes - the Plaintiff proved open, continuous and exclusive possession since 2002, over 12 years, unchallenged by the Defendants, so his title by adverse possession was established and the Defendants' title extinguished

Reasoning

Relying on Sections 7, 13, 17 and 38 of the Limitation of Actions Act and Section 28(h) of the Land Registration Act, the court found the plaintiff took possession in 2002, built permanent structures, and enjoyed open, exclusive possession for about 19 years. The defendants never filed suit or challenged his possession; their title was therefore extinguished and the plaintiff proved his case on a balance of probabilities.

p. 5

Legal principles established

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  • To prove adverse possession a claimant must show the land is registered in the name of the respondent and that the claimant has been in open, continuous and exclusive possession for over 12 years, dispossessing or discontinuing the owner's possession
  • An oral contract for the disposition of an interest in land is unenforceable under Section 3(3) of the Law of Contract Act

Court orders

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  1. 1.The Plaintiff declared to have acquired by adverse possession all that parcel of land known as Machakos/Matuu/3503 measuring 0.10 hectares and the Land Registrar Machakos to cause registration of the parcel in the names of the Plaintiff
  2. 2.The land register relating to title No Machakos/Matuu/3503 be rectified to reflect the Plaintiff as registered proprietor and he be issued with a fresh title deed
  3. 3.The Defendants, their agents, servants or persons claiming through them restrained by permanent injunction from entering, alienating, disposing or interfering with the Plaintiff's exclusive possession, use and occupation of Machakos/Matuu/3503
  4. 4.The Defendants to forthwith effect transfer of Machakos/Matuu/3503 to Richard Mulwa Musyoka, and in default the Deputy Registrar authorised to execute all relevant documents to effect the transfer
  5. 5.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40
  • Limitation of Actions ActSections 7, 13, 17, 38(1) and (2)
  • Land Registration Act 2012Section 28(h)
  • Law of Contract ActSection 3(3)

Cases cited (5)

  • Kabugi Kingori & Another v Kartar Singh & Another
    [2019] eKLR
  • Joseph Mutafari Situma v Nicholas Makhanu Cherongo
    [2007] eKLR
  • Peter Mbiri Michuki v Samuel Mugo Michuki
    [2014] eKLR
  • Kaswe v Mwaani Investments Limited & 4 Others
    1KLR 184
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act; Article 40 of the Constitution of Kenya 2010 cited by counsel

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, "Richard Mulwa Musyoka v Samuel Kariuki Waithani & Joan Wangari Kariuki", Case Analysis (2023). Originating Summons dated July 21, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/136/eng@2023-01-18

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