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ELCPartially AllowedEnvironment & Land Case 610 of 2012· [2023] KEELC 16012 (KLR)

Haree Construction Limited v Joreth Limited & 2 others

Environment and Land Court of Kenya
2 March 2023
9,103 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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A Nairobi court stripped two land buyers of their titles because they bought plots someone else was visibly occupying, handing the occupier ownership.

What this practically means

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Executive summary

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The plaintiff, Haree Construction Limited, claimed two plots (LR 13330/520 and 13330/524, formerly Plots 265 and 269) purchased from allottees of Thome Farmers No. 5 Limited, seeking declarations of ownership by purchase and adverse possession, cancellation of titles subsequently issued to the 2nd and 3rd defendants, rectification of the register, and a permanent injunction. The 1st defendant, Joreth Limited, the registered owner of the mother title LR 13330, denied passing any interest to Thome Farmers or the plaintiff and relied on a consent order in HCCC 6206 of 1992. The 2nd and 3rd defendants, who bought the plots from Joreth in 2011, counterclaimed for eviction and damages for trespass. The court framed four issues and severed the adverse possession and purchase claims. It held that the adverse possession claim over plot 520 failed as occupation began only in 2002, short of the 12-year period. Plot 524, occupied since 1998 and fenced, was held acquired by adverse possession, the 3rd defendant having conceded she never obtained vacant possession. On plot 520, the court found Joreth had accepted payments for title processing, facilitated a title for the plaintiff's adjacent undisputed plot, and knew of the plaintiff's possession, so it was estopped from denying the plaintiff's interest; its secret 2011 sale amounted to non-disclosure, and the plaintiff's rights encumbered the title. Neither the 2nd nor 3rd defendant qualified as bona fide purchasers, having viewed the land in the plaintiff's control. The consent order in HCCC 6206 of 1992 did not bind the plaintiff, a non-party. Both counterclaims were dismissed; the plaintiff's titles were ordered registered, transfers exempted from land control board requirements, and costs awarded against the 1st defendant.

Key legal issues

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01

Adverse possession of LR 13330/524

Holding

Plaintiff acquired the plot in 1998, fenced it and used it for storage; occupation was open, notorious and exclusive for over 12 years, entitling it to the plot by adverse possession

Reasoning

The court found the plaintiff took possession in 1998, erected a barbed wire fence and live hedge, and stored construction materials there. The 3rd defendant's own cross-examination conceded she never obtained vacant possession because someone else controlled the land. Fencing and storage use constituted occupation; animus possidendi was manifest, defeating the 3rd defendant's title claim.

p. 12
02

Adverse possession of LR 13330/520

Holding

Claim fails on computation of time: occupation began in 2002 and suit was filed in 2012, short of 12 years

Reasoning

PW1's own statement placed quiet occupation of plot 520 from 2002. Since the suit was filed in 2012, the statutory 12-year period had not accrued. The court severed the claims, treating plot 520 as a purchase/equity claim instead.

p. 11
03

Plaintiff's rights over LR 13330/520 by purchase and equity

Holding

The 1st defendant, having accepted payments for title processing and acknowledged the plaintiff's interest, was estopped from denying it; the plaintiff's interest was an encumbrance the 1st defendant could not defeat by a secret sale

Reasoning

The 1st defendant received monies through Kimani Kahiro Advocates referencing the suit plots, facilitated a title for the adjacent undisputed plot bought the same way, and never sought eviction between 2007 and 2011. Its secret sale of plot 520 in 2011 while negotiations continued amounted to non-disclosure of material facts. Equity regards as done that which ought to have been done, so the plaintiff's rights encumbered the title.

p. 15
04

Whether the 2nd and 3rd defendants were bona fide purchasers

Holding

Neither qualified: both viewed the properties before purchase and saw the plaintiff in control; the 2nd defendant also lacked proof of actual purchase

Reasoning

The 2nd defendant admitted the plot was fenced with a stone wall and accessible only through the plaintiff's gate, yet never asked why. The 3rd defendant conceded she never got vacant possession. A bona fide purchaser must honestly intend to purchase and not acquire wrongly; buying land in another's control fails that test.

p. 15
05

Binding effect of the consent order in HCCC 6206 of 1992

Holding

The consent applied only to 6 of 23 defendants; the plaintiff and its vendors were not parties, so it could not bind them

Reasoning

There was no evidence the plaintiff or those it bought from were parties to HCCC 6206 of 1992. The consent dated 13.6.2003 covered only 6 of 23 defendants. The 1st defendant's accusation of non-compliance was therefore of no consequence, consistent with the Court of Appeal's finding in Patrick Magu Mwangi Kimunyu v Joreth Limited.

p. 13
06

Counterclaims for trespass, eviction and damages

Holding

Both counterclaims fail since the plaintiff's rights over both plots were affirmed

Reasoning

Having found the plaintiff entitled to plot 524 by adverse possession and to plot 520 by equity/purchase, the court held the plaintiff was not a trespasser. Eviction and damages for trespass could not issue against a party whose rights over the land were established.

p. 15

Legal principles established

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  • A claimant in adverse possession must prove exclusive, open and notorious possession as of right without interruption for 12 years
  • Permanent buildings are not required for occupation in adverse possession; fencing and use of land suffices
  • A consent order in prior litigation binds only parties to it; a non-party cannot be held to its terms
  • A party who by conduct or omission causes another to believe a thing to be true and to act on it is estopped from denying it
  • A purchaser who buys land in the control of another cannot qualify as a bona fide purchaser for value without notice

Court orders

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  1. 1.The counterclaims of both the 2nd and 3rd defendants are dismissed
  2. 2.The plaintiff is entitled to land parcel LR No. 13330/524 by way of adverse possession
  3. 3.Cancellation of the title for L.R 13330/524 registered in the name of Margaret Wambui Ngugi Wanjiku and the plaintiff to be registered as owner of the said land
  4. 4.Declaration that the plaintiff is the rightful owner of land parcel LR No. 13330/520
  5. 5.Cancellation of the title L.R. 13330/520 in the name of Boniface Muriithi Kihungi and the plaintiff to be registered as owner of the said land
  6. 6.The defendants to facilitate transfer of the suit properties to the plaintiff; in default the Deputy Registrar to sign all requisite documents
  7. 7.The plaintiff shall meet all costs appertaining to the transfer and registration of the suit properties into his name
  8. 8.The transfers of the suit properties shall not be subjected to the requirements of the land control board
  9. 9.The 1st defendant to pay costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 28(b)
  • Land Registration ActSection 26
  • Limitation of Actions Act
  • Evidence ActSection 6
  • Evidence ActSection 120

Cases cited (29)

  • Patrick Magu Mwangi Kimunyu v Joreth Limited
    [2015] eKLR

    History of Joreth/Thome Farmers No. 5 dispute over LR 13330; consent order binding only parties

  • Richard Kariuki Joel Gichu v Joreth Limited & 2 others
    ELC No. 174 of 2009

    Adverse possession claims over Joreth land

  • Edward Mbogo v Joreth Limited
    ELC No. E101 of 2020

    Adverse possession claims over Joreth land

  • Munyua Maina v Hiram Githiha Maina
    [2013] eKLR

    Overriding interests under Section 28(b) Land Registration Act; burden on one challenging title

  • Purple Rose Trading Company Ltd v Bhanoo
    [2014] eKLR

    Claimant cannot sustain claim for specific performance or enforce proprietary rights (cited by 1st defendant)

  • Goan Institute Nakuru v Said Advalla
    [2007] eKLR

    Specific performance/proprietary rights (cited by 1st defendant)

  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR

    Ingredients of adverse possession; cited by both parties

  • Behange v School Outfitters Limited
    [2001] E.A. 20

    Protection of unchallenged titles (cited by 1st defendant)

  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others
    [2009] eKLR

    Specific performance and adverse possession cannot co-exist (cited by 1st defendant)

  • Hyde v Pearce
    [1982] 1 ALL ER 1029

    Incompatibility of specific performance and adverse possession claims (cited by 1st defendant)

  • Kweyu v Omuto
    [1990] KLR 709

    Requirements of adverse possession

  • Illinois Steel Company vs. Budsisz
    115 Wis 68

    Adverse possession (cited by 1st defendant)

  • Mtana Lewa v Kahindi Ngala Mwangandi
    [2015] eKLR

    Ingredients of adverse possession

  • Titus Mutuku Kasuve v Mwaani Investment Limited & 4 others
    [2004] eKLR

    Requirements of adverse possession

  • Mbira vs. Gachuhi
    (2002) 1 EALR 137

    Non-permissive, open, notorious and exclusive occupation for statutory period

  • Katende v Haridar & Company Limited
    [2008] 2 E.A 173

    Definition of a bona fide purchaser for value without notice

  • Kenneth Chege Kamau & 2 others v Thome Farmers No.5 Ltd & 3 others
    [2019] eKLR

    History of LR 13330 dispute; indefeasibility (cited by 2nd defendant)

  • Richard Nyamwange & another v Samuel Kimani Gathemba & 10 others
    [2020] eKLR

    Joreth's shifting position on relationship with Thome Farmers No. 5

  • Public Trustee vs. Wanduru Ndegwa
    [1984] eKLR

    Adverse possession (cited by 3rd defendant)

  • Joseph Kaburu vs. M'Arimu Kamuru and Eunice Wambui Nderitu
    Meru HCCC No. 3 of 2004

    Adverse possession (cited by 3rd defendant)

  • Kenneth Kimari Gitere vs. Joreth Limited
    [2020] eKLR

    Adverse possession (cited by 3rd defendant)

  • Sisto Wambugu v Kamau Njuguna
    [1983] eKLR 172

    Purchaser cannot claim both purchase and adverse possession (cited by 3rd defendant)

  • In Re Estate of Julius Ndubi Javan (Deceased)
    [2018] eKLR

    Non-disclosure of material facts undermines justice

  • Inwards and others vs. Baker
    (1965) 1 All ER 446

    Equity arising from expenditure by a person in occupation led to believe he could remain

  • Kenya National Capital Corporation Ltd. vs. Albert Mario Cordeiro & Another
    (2014) eKLR

    Ingredients of equitable estoppel

  • Zakaria Kiruki Ikiara v Shadrack Mwiti M'Mwarania & 2 others
    [2018] eKLR

    Court of law and equity; equity intervenes to avoid leaving a genuine claim without remedy

  • Carol Construction Engineers Limited & another v National Bank of Kenya
    [2020] eKLR

    Estoppel rule from Pickard v Sears

  • Pickard v Sears
    112 E.R. 179

    Estoppel by words or conduct inducing another to act on a belief

  • Karuntimi Raiji vs. M'Makinya M'Itunga
    (2013) eKLR

    Court is one of law as well as equity

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to land

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, "Haree Construction Limited v Joreth Limited & 2 others", Case Analysis (2023). Environment & Land Case 610 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16012/eng@2023-03-02

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