Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNakuru ELC No. 36 of 2017 (formerly Nairobi HCCC No. 991 of 2006 (OS), renamed Nairobi ELC 2005 of 2007, consolidated with Nairobi HCCC No. 45 of 2010, renamed Nairobi ELC No. 600 of 2010)· [2023] KEELC 740 (KLR)

Mai Mahiu Kijabe Longonot Co Ltd v Kariuki & 6 others (Environment & Land Case 36 of 2017) [2023] KEELC 740 (KLR)

Environment and Land Court
9 February 2023
10,149 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

#

A Kenyan family lost their 40-year land claim because an unpaid government tax charge froze the clock on their adverse possession claim.

What this practically means

#

Executive summary

#
Two suits were consolidated: an originating summons by the administrators and heirs of the late Kariuki Wathanga Chotara seeking a declaration that LR No. 1144/17/XXIV, Naivasha, was acquired by adverse possession from Maai Mahiu Kijabe Longonot Co. Ltd, and a plaint by the company seeking the heirs' eviction, an injunction and damages. The estate claimed the deceased purchased the land under a sale agreement dated 2/4/1982, took possession, and paid the purchase price, whereas the company asserted the deceased was merely a tenant. The court found the sale agreement valid and unchallenged, and that the defendant failed to prove a tenancy, having produced no rent receipts, lease, or explanation for decades of unpaid rent. Although the agreement became void on 30/6/1982 (completion deadline) for want of evidence of full payment, rendering the deceased a trespasser, a critical obstacle was entry No. 6 on the title: a notification of charge registered by the Commissioner of Income Tax on 11/11/1983 for Kshs 1,500,000. Following Masek Ole Tinkoi, the court held that land charged by the Government to secure tax is 'land otherwise enjoyed by the Government' under Section 41 of the Limitation of Actions Act; time for adverse possession could not run while the undischarged charge subsisted, and a prescriptive order would override the chargee's rights and assist tax avoidance. The originating summons was dismissed. The company's eviction claim succeeded: the plaintiffs were given 30 days to vacate in default of forcible eviction, a permanent injunction issued, and nominal general damages of Kshs 1,000,000 awarded, trespass being actionable per se. The plaintiffs were also ordered to pay the defendant's taxed costs.

Key legal issues

#
01

Existence and performance of the sale agreement dated 2/4/1982

Holding

The sale agreement was valid and admitted in evidence; the deceased inherited an interest under it, but the defendant failed to prove the deceased was a mere tenant

Reasoning

The agreement was unchallenged and admitted. The defendant alleged a landlord-tenant relationship but produced no rent receipts, invoices or lease, and could not explain why the deceased and later his administrators collected rents from the premises without remitting any to the defendant for decades. The burden lay on the defendant to prove tenancy and it failed.

p. 9
02

Whether the estate acquired title by adverse possession

Holding

The claim fails because the Commissioner of Income Tax's charge registered on 11/11/1983 suspended time, and the land is protected under Section 41 of the Limitation of Actions Act while the charge subsists

Reasoning

The agreement became void on 30/6/1988 for non-completion, when the deceased became a trespasser. But the notification of charge by the Commissioner of Income Tax (entry No. 6, 11/11/1983) remained registered, signifying the Government's security interest for unpaid tax. Such land is 'land otherwise enjoyed by the Government' under Section 41(a)(i) of the Limitation of Actions Act; time could not run, and declaring title by prescription would override the chargee's rights and assist tax avoidance.

p. 15
03

Whether the defendant's eviction claim succeeds

Holding

The eviction claim succeeds; the defendant retained locus to evict the plaintiffs as trespassers

Reasoning

Since the plaintiffs remained trespassers after the agreement became void, trespass being a continuing cause of action renewed daily, the defendant was not time-barred and could bring eviction proceedings. Its claim in the plaint dated 25/1/2010 was established on a balance of probabilities and the eviction and permanent injunction prayers were granted.

p. 17
04

General damages for trespass

Holding

Nominal general damages of Kshs 1,000,000 awarded despite inadequate proof of quantum, as trespass is actionable per se

Reasoning

The defendant's evidence and submissions did not address the quantum of general damages and no expert analysis of rents collected was adduced. However, trespass to land is actionable per se and no proof of damage is necessary; the court awarded nominal damages of Kshs 1,000,000 to compensate the defendant for the years of occupation.

p. 18

Legal principles established

#
  • Land charged by the government to secure unpaid tax is 'land otherwise enjoyed by the Government' under Section 41(a)(i) of the Limitation of Actions Act, so title by adverse possession cannot be acquired over it while the charge subsists
  • Time for adverse possession could not run in favour of a party while the Commissioner's notification of charge remained undischarged, since the charge suspended the parties' contractual rights
  • A charge takes effect as security only and does not operate as a transfer of the chargor's interest; the chargor's right ranks higher than third parties
  • Trespass to land is a continuing cause of action renewed from day to day and is actionable per se

Court orders

#
  1. 1.The Originating Summons dated 18/9/2006 is dismissed
  2. 2.The defendant's claim in the plaint dated 25/1/2010 is granted
  3. 3.The plaintiffs shall remove themselves and all their movable assets from LR No. 1144/17/XXIV within 30 days of judgment and in default they shall be forcibly evicted
  4. 4.A permanent injunction restraining the plaintiffs from entering or trespassing onto LR No. 1144/17/XXIV
  5. 5.The plaintiffs shall jointly and severally pay the defendant Kenya Shillings One Million (Kshs 1,000,000/=) as general damages for trespass
  6. 6.The plaintiffs shall jointly and severally pay the defendant the taxed costs of the proceedings

Authorities

#

Legislation

  • Income Tax ActSection 103
  • Income Tax ActSection 97
  • Tax Procedures Act, 2015Section 40; Section 110 (deleting s.103 Income Tax Act)
  • Limitation of Actions ActSections 13, 41(a)(i)
  • Land ActSections 80, 86, 87

Cases cited (12)

  • Walter Kipchirchir Koech v Tapnyobii w/o Melil & another
    [2021] eKLR
  • Francis Mwaniki Ngumba v John Mwariri Wamai & 4 others
    [2019] eKLR
  • Wanyoike v Kahiri
    [1979] KLR
  • Jandu v Kirpal
    [1975] EA 225
  • Wainaina v Murai and others
    [1976] KLR 227
  • Bedan Maina Njoroge v Patrick Ngaruiya & another
    [2021] eKLR
  • Mtana Lewa v Kahindi Ngala Mwangandi
    (2005) eKLR
  • Z F Stoffberg NO & others v City of Cape Town
    (1325/2017) [2019] ZASCA 70
  • Masek Ole Tinkoi & 3 others v Kenya Grain Growers Limited & 2 others
    [2018] eKLR
  • Gatatha Farmers Co. Ltd v Otieno Okiro & 2 others
    [2018] eKLR
  • Janendra Raichaind Shah v Mistry Walji Naran Murji
    [2014] eKLR (Msa. Civil Suit No. 84 of 2005)
  • Duncan Nderitu Ndegwa v. KP& LC Limited & Another
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over consolidated land disputes (adverse possession and eviction) transferred from Nairobi to Nakuru

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mai Mahiu Kijabe Longonot Co Ltd v Kariuki & 6 others (Environment & Land Case 36 of 2017) [2023] KEELC 740 (KLR)", Case Analysis (2023). Nakuru ELC No. 36 of 2017 (formerly Nairobi HCCC No. 991 of 2006 (OS), renamed Nairobi ELC 2005 of 2007, consolidated with Nairobi HCCC No. 45 of 2010, renamed Nairobi ELC No. 600 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/740/eng@2023-02-09

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