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ELCDismissedEnvironment & Land Case 278 of 2018· [2023] KEELC 697 (KLR)

Nditu v Manyara (Environment & Land Case 278 of 2018) [2023] KEELC 697 (KLR)

Environment and Land Court
26 January 2023
AOAO Ombwayo
3,216 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan tenant who occupies land with the owner's permission cannot claim ownership through adverse possession, even if the lease was void.

What this practically means

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Executive summary

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The plaintiff filed an Originating Summons dated August 9, 2018 seeking a declaration that he had acquired land reference No 464/15, Title No IR 168591 (3.241 hectares) in Nakuru County by adverse possession, and cancellation of the defendant's registration. He contended that he entered the property under a lease dated February 22, 2006 over three acres, that no Land Control Board consent was obtained within the statutory period so the transaction became null and void under the Land Control Act, and that his open occupation and extensive developments for over twelve years ripened into prescriptive rights. The defendant admitted the lease but maintained the plaintiff's entry was consensual and his possession neither exclusive nor peaceful, pointing to rent arrears, a notice terminating the lease in 2015, distress proceedings by Airways Auctioneers in 2017, interventions by the area Chief and the Assistant County Commissioner, and a pending eviction suit (ELC Case No 65 of 2017). The parties' witness statements were deemed their evidence and the matter canvassed by written submissions. Applying section 38 of the Limitation of Actions Act and Court of Appeal authorities on the ingredients of adverse possession, the court held that possession with the owner's permission, even where the underlying transaction is void for want of land control consent, is not hostile and cannot found adverse possession; further, the plaintiff's possession was disturbed and not quiet or peaceful. The originating summons was dismissed. No express costs order was recorded.

Key legal issues

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01

Whether possession under a lease that became null and void for want of Land Control Board consent ripens into adverse possession

Holding

It does not; the plaintiff's entry and continued possession were permissive and consensual, which disqualifies an adverse possession claim

Reasoning

Both parties accepted that the plaintiff entered the suit property under a lease agreement dated February 22, 2006 with the defendant's permission. Following Samuel Miki Waweru v Jane Njeri Richu and Emmanuel Njogu Muchina v Judy Njeri Micere, possession with the owner's permission is not hostile and cannot found an adverse possession claim regardless of the alleged nullity of the transaction for want of land control consent.

p. 6
02

Whether the plaintiff's possession was quiet and peaceful for the requisite period

Holding

It was not; rent arrears, notices, distress proceedings, chief's interventions and an eviction suit demonstrated interruption

Reasoning

The defendant demonstrated through the letter of June 3, 2015 terminating the lease, rent arrears from 2007 to 2015, instructions to Airways Auctioneers to levy distress, the chief's letters and ELC Case No 65 of 2017 seeking eviction that the plaintiff's possession was disturbed and disputed rather than quiet and peaceful.

p. 6

Legal principles established

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  • A claim for adverse possession cannot succeed where the claimant is in possession with the permission of the owner or in pursuance of a lease
  • The claimant must prove exclusive, open and uninterrupted possession for 12 years and the animus possidendi to dispossess the true owner

Court orders

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  1. 1.The plaintiff's originating summons dated August 9, 2018 is dismissed

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1) and (2)
  • Land Control ActSection 6(1)(a)
  • Land Control ActSection 8(1)
  • Civil Procedure RulesSection 6

Cases cited (12)

  • Wambugu v Njuguna
    [1983] KLR 172
  • Jandu v Kirpal & another
    [1975] EA 225
  • Wilson Njoroge Kamau v Nganga Muceru Kamau
    [2020] eKLR
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Isaac Maobe Okeri v Magero Nyaosi alias Maute Okeri
    [2016] eKLR
  • Martins v Ram
    [2022] eKLR
  • Kasuve v Mwaani Investments Limited & 4 others
    [2004] 1 KLR 184
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    Kisumu Civ App No 110 of 2016 [2020] eKLR
  • Haro Yonda Juaie v Sadaka Dzengo Mbauro & another
    [2014] eKLR
  • Samuel Miki Waweru v Jane Njeri Richu
    [2007] eKLR
  • Andrew Kiprotich Langat v Joseph Kipruto Maina
    [2022] eKLR
  • Emmanuel Njogu Muchina v Judy Njeri Micere
    [2021] eKLR
Jurisdiction invoked
Section 38(1) and (2) of the Limitation of Actions Act - application to the High Court (ELC) for an order that the claimant be registered as proprietor 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, "Nditu v Manyara (Environment & Land Case 278 of 2018) [2023] KEELC 697 (KLR)", Case Analysis (2023). Environment & Land Case 278 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/697/eng@2023-01-26

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