Nderu (Suing as administrator of Estate Gacheru Kanungu – Deceased) v Babu
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff is the legal owner and proprietor of Dagoretti/Riruta/2064
Yes - plaintiff produced a title deed obtained on transmission, with no encumbrances; defendant produced no proof of title
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.
Whether the defendant acquired the suit property by adverse possession
No - the claim failed
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.
Whether the plaintiff is entitled to the reliefs sought
Yes - eviction and permanent injunction granted
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.
Legal principles established
#- 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
#- 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.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.Costs of the suit and counterclaim awarded to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land parcel LR Dagoretti/Riruta/2064
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.