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ELCPartially AllowedEnvironment & Land Case 270 of 2019· [2023] KEELC 18064 (KLR)

Nderu (Suing as administrator of Estate Gacheru Kanungu – Deceased) v Babu

Environment and Land Court of Kenya
24 May 2023
5,216 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Nairobi court ordered a family evicted from land they had occupied for decades because they could not prove adverse possession against a registered title.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Gacheru Kanungu, sued for eviction and a permanent injunction against the defendant from land parcel LR Dagoretti/Riruta/2064, registered in the names of the plaintiff and her siblings following transmission in Succession Cause No. 486 of 2016. The defendant counterclaimed for adverse possession, alleging his father bought the land from one Kahihu Kinyanjui in 1965, that the vendor refused to transfer, and that the plaintiff's father fraudulently obtained title. He relied on a 1981 Land Control Board consent and a prior suit, RMCC No. 3122 of 1990, whose judgment file could not be traced. The court framed four issues. On ownership, it held that under section 24 of the Land Registration Act the registered plaintiff's title was good and protected, the defendant having produced no proof of title. On adverse possession, the court found the defendant failed to prove 12 years of open, exclusive, non-permissive possession: cautions and restrictions on parcel 1479 stopped time running; he did not demonstrate the connection between parcels 177, 1479 and 2064 or that time ran against the previous owner before subdivision; and possession as a purchaser does not found adverse possession. His fraud allegations were not strictly proved to the R.G Patel standard. The counterclaim was dismissed. The court granted eviction within 90 days, a permanent injunction, and costs of the suit and counterclaim to the plaintiff.

Key legal issues

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01

Whether the plaintiff is the legal owner and proprietor of Dagoretti/Riruta/2064

Holding

Yes - plaintiff produced a title deed obtained on transmission, with no encumbrances; defendant produced no proof of title

Reasoning

Section 24 of the Land Registration Act vests absolute ownership in the registered proprietor. The plaintiff produced a title deed in her and her siblings' names obtained on 10/07/2018 with no encumbrances. The defendant, who claimed his father bought the land in 1965, produced no proof of title. Following Moses Parantai and other authorities, the court held the plaintiff's title good and deserving of protection.

p. 7
02

Whether the defendant acquired the suit property by adverse possession

Holding

No - the claim failed

Reasoning

The defendant had to show 12 years of open, exclusive, non-permissive possession. The court found cautions and restrictions on parcel 1479 stopped time running; the defendant failed to show the connection between parcels 177, 1479 and 2064 or that time ran against the previous owner before subdivision; and possession of a portion as a purchaser does not constitute adverse possession. Fraud allegations were also not strictly proved.

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Whether the plaintiff is entitled to the reliefs sought

Holding

Yes - eviction and permanent injunction granted

Reasoning

Having found the plaintiff the duly registered rightful owner, the court held she was entitled to the reliefs in the amended plaint: eviction of the defendant with crops and structures within 90 days, and a permanent injunction against entry or interference with the suit parcel.

p. 10

Legal principles established

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  • Registration vests absolute ownership, and a registered proprietor's title is protected absent proof of fraud or illegality
  • Adverse possession accrues on land and not title; a claimant must prove non-permissive, open, exclusive and adverse use for 12 years
  • Prohibitory orders such as cautions and restrictions stop the computation of time for adverse possession
  • Allegations of fraud must be strictly proved to a standard above mere balance of probabilities

Court orders

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  1. 1.Order of eviction against the defendant and his family members, heirs, servants or agents from land parcel No. LR Dagoretti/Riruta/2064 with all crops and structures thereon within 90 days from the date of judgment
  2. 2.Permanent injunction against the defendant, his family members, heirs, servants or agents barring them from entering and/or interfering in any manner with land parcel No. LR Dagoretti/Riruta/2064
  3. 3.Costs of the suit and counterclaim awarded to the plaintiff

Authorities

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Legislation

  • Land Registration Actsection 24
  • Land Registration Actsection 25
  • Land Registration Actsection 26
  • Limitation of Actions Act (cap 22)section 7
  • Limitation of Actions Actsections 17, 37 and 38
  • Land Control Act (cap 302)section 6
  • Civil Procedure Act (cap 21)section 27
  • Civil Procedure RulesOrder 15 rule 2
  • Law of Succession Act

Cases cited (13)

  • Samuel Kihamba vs Mary Mbaisi
    [2015] eKLR, CA 27 of 2013

    Elements of adverse possession: nec vi, nec clam, nec precario plus animus possidendi

  • Kiplagat Kotut vs Rose Jebor Kipngok
    [2014] eKLR
  • Gabriel Mbui vs Mukindia Maranga
    [1993] eKLR, Nairobi Civ No. 283 of 1990

    Adverse character of possession must be established as a fact, not assumed from mere exclusive possession

  • William Gatuhi Murathe vs Gakuru Gathimbi
    [1998] eKLR
  • Haro Younda Juaje vs Sadaka Dzengo Mbauro & Kenya Commercial Bank
    (2014) eKLR
  • Simon Muthika Kamu vs Harrison Musyimi Kakundi & another
    [2021] eKLR
  • Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) v Stephen Njoroge Macharia
    [2020] eKLR

    Registered proprietor is prima facie absolute and indefeasible owner under sections 25 and 26 of the Land Registration Act

  • Kiplangat Shelisheli Mutarakwa v Joseph Rotich Kones
    [2018] eKLR

    Protection of registered title absent evidence to the contrary

  • Margaret Njeri Wachira v Eliud Waweru Njenga
    [2018] eKLR

    Protection of registered title absent evidence to the contrary

  • Mbira –vs- Gachui
    (2002) IEALR 137

    Adverse possession requires non-permissive, open, notorious, exclusive and adverse use for the statutory period

  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR, Kisumu Civ App. No. 110 of 2016

    Five elements a claimant of adverse possession must establish

  • R.G Patel vs Lalji Makanji
    1957 E.A 314

    Fraud must be strictly proved; more than mere balance of probabilities required

  • Hussein Janmohammed & Sons vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287

    Costs follow the event; successful party ordinarily awarded costs

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel LR Dagoretti/Riruta/2064

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, "Nderu (Suing as administrator of Estate Gacheru Kanungu – Deceased) v Babu", Case Analysis (2023). Environment & Land Case 270 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18064/eng@2023-05-24

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