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ELCDismissedELC OS No of 2022 (Originating Summons dated June 8, 2022)· [2023] KEELC 413 (KLR)

Wainaina v Njii; Mwaura (Interested Party) (Environment and Land Case Civil Suit E023 of 2022) [2023] KEELC 413 (KLR)

Environment and Land Court
2 February 2023
7,989 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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A Nairobi court threw out a 12-year adverse possession claim because the owner never filed the required certificate for his photos and admitted he thought he was building on his own land.

What this practically means

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Executive summary

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The plaintiff filed an originating summons dated June 8, 2022 seeking to be registered as proprietor of LR No 209/11388/40 by adverse possession, contending that he entered the land in 1994, built a six-floor building completed in 1996, and occupied it openly and peacefully for over 12 years. The defendant opposed, asserting that the plaintiff's own documents related to his adjoining parcel LR No 209/11388/37; that the plaintiff only entered the suit property in 2017; that he had acknowledged the defendant's title and agreed to remove temporary structures; and that a previous adverse possession suit (Milimani ELC OS No 495 of 2018) had been withdrawn on March 14, 2022, interrupting time. The interested party filed a replying affidavit but no submissions. The court framed three issues. It held that the plaintiff's photographic evidence was inadmissible for want of a certificate under section 106B of the Evidence Act, and that his documentary exhibits referred to his own parcel, not the suit property. The plaintiff's failure to disclose when he discovered the building stood on the suit property attracted an adverse inference; possession under a mistaken belief of ownership does not count towards the 12-year period. Further, the withdrawn previous suit stopped time running, and the plaintiff's acknowledgment of the defendant's title negated adverse possession. The plaintiff, bearing the burden of proof on a balance of probabilities, failed to discharge it. The originating summons was dismissed with costs to the defendant.

Key legal issues

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01

Whether the plaintiff proved actual, physical and visible possession of the suit property for the statutory 12 years

Holding

Not proved. The photographs lacked a section 106B certificate and the annexed documents referred to the plaintiff's own parcel LR No 209/11388/37, not the suit property

Reasoning

The court found the photographic images were not accompanied by an electronic certificate as required by section 106B of the Evidence Act and were of no probative value. The other documents (water connection receipts, land rates, clinic registration) referred to LR No 209/11388/37, the plaintiff's own parcel, indicating an attempt to mislead the court. The plaintiff also never disclosed when he discovered the building was on the suit property, attracting an adverse inference.

p. 13
02

Whether possession during a mistaken belief of ownership counts towards the limitation period

Holding

It does not; adverse possession accrues only from knowledge that the property belongs to another

Reasoning

The plaintiff admitted he constructed the six-floor building believing it was on LR No 209/11388/37 and later discovered the mistake. He failed to disclose when he made that discovery. The court held that the period during which the claimant believed he was on his own property cannot be computed towards the 12-year statutory duration, making the claim premature.

p. 12
03

Whether the withdrawal of the previous suit (Milimani ELC OS No 495 of 2018) and the plaintiff's acknowledgment of the defendant's title defeated the claim

Holding

Yes; the previous suit stopped time running, and the acknowledgment of the defendant's title and agreement to vacate negated adverse possession

Reasoning

Relying on Ndatho v Itumo and Kiritu v Kabura, the court held that filing a suit for recovery of land stops time under section 38 of the Limitation of Actions Act. The withdrawn suit therefore interrupted possession. Further, the plaintiff acknowledged the defendant's ownership and agreed to remove his temporary structures, which negates adverse possession; the effective eviction notice was also an assertion of the owner's right.

p. 14

Legal principles established

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  • Photographic images tendered as electronic evidence must be accompanied by a certificate under section 106B of the Evidence Act; without it they carry no probative value
  • Time for adverse possession does not run while the claimant believes he is on his own property; the claim accrues only once the claimant knows the property belongs to another
  • The filing of a suit for recovery of land stops time running for purposes of adverse possession, and withdrawal of a previous adverse possession suit interrupts possession
  • Acknowledgment of the registered owner's title negates a claim for adverse possession
  • The burden of proof in a claim lies on the plaintiff, to be discharged on a balance of probabilities

Court orders

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  1. 1.The Originating Summons dated June 8, 2022 is dismissed
  2. 2.Costs of the suit awarded to the Defendant

Authorities

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Legislation

  • Evidence ActSections 106B, 107, 108, 109
  • Limitation of Actions ActSection 38
  • Registered Land Act (repealed)Section 143

Cases cited (17)

  • Estate of the Late Lucy Nyokabi Kiarie v Mary Nyakio Kanini & 3 others
    [2020] eKLR
  • Celina Muthoni Githinji v Safiya Binti Swalleh & 8 others
    [2018] eKLR
  • Mtana Lewa v Kahindi Ngala Mwangandi
    [2015] eKLR
  • Wambugu v Njuguna
    [1983] KLR 173 / [1983] eKLR
  • Paulina Wanjiru Kiarie v Benson Irungu Mbaria
    [2014] eKLR
  • Jandu v Kirplal & another
    (1975) EA 225
  • Haro Yonda Juaje v Sadaka Dzengo Mbauro & another
    [2014] eKLR
  • Speaker, County Assembly of Kisumu & 2 others v Clerk, Kisumu County Assembly Service Board & 6 others
    [2015] eKLR
  • Samwel Kazungu Kambi v Nelly Ilongo the Returning Officer, Kilifi County & 2 others
    [2017] eKLR
  • Catherine Koriko & 3 others v Evaline Rosa
    [2020] eKLR
  • Ndatho v Itumo
    [1983] eKLR
  • William Gatuhi Murathe v Gakuru Gathimbi
    Civil Appeal No 49 of 1996 (unreported)
  • Joseph Gahumi Kiritu v Lawrence Munyambu Kabura
    Civil Appeal No 20 of 1993 (unreported)
  • Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others
    [2020] eKLR
  • Raila Odinga & others v Independent Electoral & Boundaries Commission & Others
    Petition No 5 of 2013
  • Agnes Nyambura Munga (suing as the Executrix of the Estate of the late William Earl Nelson) v Lita Violet Shepard (sued in her capacity as the Executrix of the Estate of the Late Bryan Walter Shepard)
    [2018] eKLR
  • Miller v Minister of Pensions
    (1947)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under a claim for adverse possession pursuant to the Limitation of Actions Act (Section 38)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Wainaina v Njii; Mwaura (Interested Party) (Environment and Land Case Civil Suit E023 of 2022) [2023] KEELC 413 (KLR)", Case Analysis (2023). ELC OS No of 2022 (Originating Summons dated June 8, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/413/eng@2023-02-02

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