Itiangu v Nguli (Sued as Administrator of the Late Nguli Kisalu) & another
The bottom line
#The Environment and Land Court in Kitui dismissed a man's claim to family land, ruling that 12 years of occupation alone is not enough to win.
What this practically means
#Executive summary
#Key legal issues
#Whether time for adverse possession ran before completion of land adjudication/registration
Time did not run between 1972 and issuance of the title deed in 1986 because rights in the land had not been ascertained
The court held that before ascertainment of rights and interests in unregistered land under adjudication, the land cannot be the subject of an adverse possession claim. Since the deceased was only registered on December 13, 1985 with the certificate issued in 1986, the applicant's claimed occupation from 1972 could not found a prescriptive claim for that period.
Whether the Applicant proved continuous and uninterrupted possession
No - the Applicant's simultaneous claims of possession of three parcels (1409, 1414 and Mugumo Pasta/Mazeras/1064) undermined proof of continuous possession of the suit land
The Applicant had successfully claimed adverse possession of a Malindi parcel in ELC 206 of 2017 claiming occupation since 1967, and the District Land Registrar found he had a home on parcel 1414. The court found he failed to discharge the onus of showing how he lived with his family on three parcels owned by different people during the same period.
Whether the Applicant proved dispossession or discontinuance of the owner's possession
No - it was not shown that the deceased or the respondents were ever in possession of the land so as to be dispossessed
Relying on Wambugu v Njuguna, the court held that the claimant must show the title holder was at some point in possession and was dispossessed or discontinued possession. In the present case it had not been shown that the deceased or respondents were in possession in the first place.
Whether the Applicant proved a trust over the suit land
No - the Applicant did not indicate what kind of trust was created, or how, when and why
The Applicant's alternative claim of trust failed because he gave no particulars of the trust's creation. Citing Phillicery Nduku Mumo v Nzuki Makau, trust is a question of fact to be proved by evidence, and the Applicant's claim in the succession cause concerned parcel 1414, not the suit land.
Legal principles established
#- Before ascertainment of rights in land under adjudication, land cannot be the subject of a claim for adverse possession and time does not run
- Proof of adverse possession requires showing the title holder was dispossessed or discontinued possession, not merely that the claimant was in possession for 12 years
- Trust is a question of fact to be proved by evidence
Court orders
#- 1.The Originating Summons dated April 4, 2022 is dismissed
- 2.Costs of the suit awarded to the Respondents
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over a claim for adverse possession and trust under the Limitation of Actions Act (Cap 22) and Order 37 Rule 7 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Itiangu v Nguli (Sued as Administrator of the Late Nguli Kisalu) & another", Case Analysis (2023). Environment & Land Case E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16542/eng@2023-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.