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ELCPartially AllowedOriginating Summons (not stated)· [2023] KEELC 917 (KLR)

Adakala & 8 others ((Suing on their behalf and on behalf of 664 other members of Saika-Maile Saba, Siranga and Mwengenye residents)) v Morven Developers Limited; Kiratu ( & another (Interested Parties) (Suing on his own behalf and on behalf of 1000 other members of Maili Saba Settlement /Siranga, Ogopa and Mwengenye Scheme)) (Environment and Land Case Civil Suit 483 of 2012) [2023] KEELC 917 (KLR)

Environment and Land Court
20 February 2023
5,619 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, residents of Saika, Mailisaba, Siranga and Mwenyenge, brought an Originating Summons under Sections 7 and 38(1) of the Limitation of Actions Act and Order 37 Rule 7(1) of the Civil Procedure Rules seeking to be declared absolute owners of Grant No. I.R 52764 (LR No. 15172) by adverse possession. Morven Developers Limited, the registered proprietor since 2 March 2000, opposed and filed a counter-claim seeking declarations of ownership, eviction of the Plaintiffs and the 1st Interested Party, and alternatively compensatory damages at market value. A 1st Interested Party also claimed the land by adverse possession on behalf of Maili Saba, Ogopa and Mwengenye groups, relying on allotment letters. The court found the Plaintiffs had occupied the land openly, continuously and without interruption since the 1960s, with permanent houses, schools and churches, and that the Defendant, who bought the land in 2000, had knowledge of the occupation and never effectively interrupted it. Relying on Sections 7, 13 and 17 of the Limitation of Actions Act and authorities including Benjamin Kamau v Gladys Njeri and Mtana Lewa v Kahindi Ngala Mwagandi, the court held that title had been extinguished in favour of the Plaintiffs and that the Defendant held the title in trust for them. The counter-claim was dismissed as mutually exclusive with adverse possession and statute-barred, and as an after-thought. The 1st Interested Party's claim failed because a claim by allocation is inconsistent with adverse possession. The Plaintiffs' suit was allowed with costs, and they were declared absolute owners.

Key legal issues

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01

Whether the Plaintiffs proved adverse possession

Holding

Yes - possession since the 1960s, open, continuous and uninterrupted for over 12 years, with the Defendant's knowledge; title extinguished and held in trust for Plaintiffs

Reasoning

The Plaintiffs led evidence of occupation since the 1960s with permanent houses, schools and churches. The Defendant bought in 2000 with knowledge of the settlement and never interrupted possession; his 2012 meetings with local administration did not stop time running. Possession was open, continuous and adverse, satisfying the Wambugu v Njuguna and Kimani Ruchire principles.

p. 10
02

Whether the Defendant's counter-claim could stand

Holding

No - it was obliterated by the adverse possession claim and was in any event statute-barred under Section 7

Reasoning

The interests of an adverse possessor and a registered proprietor are mutually exclusive. Once the Plaintiffs filed their adverse possession claim, the Defendant's counter-claim for eviction and damages could not flourish. Further, Section 7 of the Limitation of Actions Act extinguishes a proprietor's title after 12 years, defeating any action to recover land.

p. 5
03

Whether the 1st Interested Party proved adverse possession

Holding

No - his documentation evidenced a claim by allocation, which is inconsistent with adverse possession, and he produced no proof of rates payment

Reasoning

The 1st Interested Party relied on allotment letters and correspondence with the Commissioner of Lands, which contradicted a claim of adverse possession. His letters contained inconsistencies on amounts paid, and he admitted in writing that he was not settled on the suit property. A party cannot claim land both by allocation and adverse possession simultaneously.

p. 7
04

Whether the Defendant's title was indefeasible

Holding

The certificate of title is prima facie evidence of ownership, but title was extinguished by adverse possession; no party challenged the title's authenticity

Reasoning

Sections 24(a) and 26(1) of the Land Registration Act vest absolute ownership in the registered proprietor and protect the title from challenge except for fraud, misrepresentation, or illegal acquisition. However, no party challenged the authenticity of the title, and the claim advanced was adverse possession, which operates as a statutory extinguishment of the proprietor's title rather than a challenge to its validity.

p. 8

Legal principles established

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  • The combined effect of Sections 7, 13 and 17 of the Limitation of Actions Act extinguishes the title of the proprietor in favour of an adverse possessor at the expiry of 12 years of adverse possession
  • Adverse possession requires possession that is neither by force, stealth nor licence, adequate in continuity, publicity and extent, adverse to the title owner
  • Time under the Limitation of Actions Act stops when the owner asserts his right or when the adverse possessor admits his right

Court orders

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  1. 1.Plaintiffs declared absolute owners of Grant Number I.R 52764 (LR No. 15172) and the same to be registered in their names
  2. 2.Morven Developers Limited to transfer the said parcel to the Plaintiffs as beneficial owners by virtue of adverse possession from 2nd March 2000
  3. 3.In default of voluntary transfer, the Deputy Registrar authorized to sign all requisite documents to facilitate the transfer
  4. 4.Costs awarded to the Plaintiffs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 17
  • Civil Procedure RulesOrder 37 Rule 7(1)
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 40
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)

Cases cited (11)

  • Benjamin Kamau v Gladys Njeri
    C.A Civil Appeal No. 2132 of 1996
  • Mtana Lewa v Kahindi Ngala Mwagandi
    2015 eKLR, C.A Civil Appeal No 56 of 2014 [Malindi]
  • Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
  • Francis Gicharu Kariri v Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire v Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
  • Wanyoike v Kahiri
    [1979] KLR at page 239
  • Joseph Gahumi Kiritu v Lawrence Munyambu Kabura
    CA No 20 of 1993
  • Githu v Ndeete
  • Kweyu v Omuto
    C A Civ Appeal 8 of 1990
Jurisdiction invoked
Articles 159, 162(2)(b) and 40 of the Constitution; Section 7 & 38(1) of the Limitation of Actions Act Cap 22; Order 37 Rule 7(1) Civil Procedure Rules

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, "Adakala & 8 others ((Suing on their behalf and on behalf of 664 other members of Saika-Maile Saba, Siranga and Mwengenye residents)) v Morven Developers Limited; Kiratu ( & another (Interested Parties) (Suing on his own behalf and on behalf of 1000 other members of Maili Saba Settlement /Siranga, Ogopa and Mwengenye Scheme)) (Environment and Land Case Civil Suit 483 of 2012) [2023] KEELC 917 (KLR)", Case Analysis (2023). Originating Summons (not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/917/eng@2023-02-20

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