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ELCAllowedELC Case No. 1357 of 2014 (O.S)· [2023] KEELC 360 (KLR)

Amoni & 20 others v Guhad & another (Environment & Land Case 1357 of 2014) [2023] KEELC 360 (KLR)

Environment and Land Court
26 January 2023
2,984 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court declared 21 mechanics the lawful owners of an Eastleigh plot after 50 years of open occupation, cancelling the registered owner's title.

What this practically means

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Executive summary

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By an originating summons dated October 23, 2014, 21 plaintiffs claimed entitlement to Plot No. 36/111/151 in Eastleigh Section 3, Nairobi by adverse possession. They testified that in 1972 the registered proprietor, Jayant Kumar Jamnadas Ruparel, invited some 15 mechanics onto the land, departed for India and never returned, and that they and their successors have occupied the plot continuously for over 50 years, operating mechanic businesses there. The 1st defendant, who purchased the land in 2012, and the 2nd defendant, who held a 1999 conveyance, denied the claim; the 2nd defendant asserted he entered the land in 1980 as a mechanic and later purchased it from one James Mwangi Gacheru. The Land Registrar produced records showing transfers to the 2nd and 1st defendants but confirmed the file was incomplete, with no ownership records from 1970 to 1999. Applying the Limitation of Actions Act, section 38(1), and Court of Appeal authority, the court held that Ruparel discontinued possession in 1972, that 12 years had matured by 1984, and that the plaintiffs' open, uninterrupted occupation manifested animus possidendi. The subsequent transfers to the defendants did not interrupt the adverse possession, and the 1st defendant bought the land without ascertaining the occupants' rights, risking his title. Judgment was entered for the plaintiffs: a declaration of adverse possession, cancellation of the 1st defendant's registration, and registration of the plaintiffs as owners. Each party was ordered to bear their own costs.

Key legal issues

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01

Whether the plaintiffs' occupation of the suit land since 1972 matured into title by adverse possession

Holding

Yes. The registered owner (Ruparel) discontinued possession in 1972, 12 years had lapsed by 1984, and the plaintiffs' occupation was continuous, open and with animus possidendi; subsequent transfers of the land did not interrupt the adverse possession

Reasoning

PW1 testified that Ruparel left the land in 1972 never to return, leaving the plaintiffs in occupation. No evidence challenged the 1970 registration of Ruparel, and the Land Registrar confirmed no ownership records existed from 1970 to 1999. The 2nd defendant's claim of occupation as licensee of one James Mwangi Gacheru was unsupported, since there was no evidence Gacheru was registered owner in 1985. The 1st defendant himself found a garage on the land and could not remove the occupants. The occupation was open, uninterrupted and intended to exclude the owner, satisfying nec vi, nec clam, nec precario.

p. 5
02

Whether the 1st defendant's purchase of the land defeats the claim

Holding

No. He bought land with occupants in occupation without ascertaining their rights, and a change of ownership does not interrupt adverse possession

Reasoning

The court applied Maweu v Liu Ranching to hold that the 1st defendant bought the land without ascertaining the nature and extent of the occupants' rights, risking his title. Githu v Ndeete establishes that mere change of ownership of land occupied under adverse possession does not interrupt that possession. The 1st defendant, on his own admission, found a garage on the land and the mechanics declined to move out, confirming that the occupation continued notwithstanding his registration.

p. 6

Legal principles established

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  • A claimant seeking title by adverse possession must prove exclusive possession of the land openly and as of right, without interruption, for 12 years either after dispossessing the owner or after the owner discontinued possession on his own volition
  • The mere change of ownership of land occupied by another under adverse possession does not interrupt that person's adverse possession
  • A purchaser of land who fails to ascertain who is in possession of it risks his title

Court orders

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  1. 1.It is declared that the plaintiffs are entitled to the land parcel no. 36/111/151 by way of adverse possession
  2. 2.An order for the cancellation of the 1st defendant Said Mohamed Guhad as the registered owner of parcel 36/111/151, and the plaintiffs and/or their appointed legal representatives to be registered as owners of the said land
  3. 3.Each party is to bear their own costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 37
  • Limitation of Actions ActSection 38(1) and (2)

Cases cited (10)

  • Kasuve v Mwaani Investment Limited & 4 others
    1 KLR 184; [2004] eKLR
  • Propwa Company Limited v Justus Nyamo Gatondo & another
    [2020] eKLR
  • Daudi Ledama Morintat v Mary Christine Kiarie & 2 others
    [2017] eKLR
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Ruth Wangari Kanyagia v Josephine Muthoni Kinyanjui
    [2017] eKLR
  • William Kipnyor Rotich v Paul Kiprop Karoney
    [2021] eKLR
  • Mate Gitabi v Jane Kabubu Muga Alias Jane Kaburu Muga & 3 Others
    [2017] eKLR
  • Samuel Kihamba v Mary Mbaisi
    [2015] eKLR
  • Maweu Vs Liu Ranching & Farming Cooperative Society Limited
    [1985] KLR 430
  • Githu v. Ndeete
    [1984] KLR 776
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act - application to court for an order that the claimant be registered as proprietor of land by adverse possession

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, "Amoni & 20 others v Guhad & another (Environment & Land Case 1357 of 2014) [2023] KEELC 360 (KLR)", Case Analysis (2023). ELC Case No. 1357 of 2014 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/360/eng@2023-01-26

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