Karungu v Joreth Limited & another
The bottom line
#A Kenyan court gave a woman land she had openly occupied since 1986, ruling that buying registered property does not defeat an adverse possessor's rights.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved adverse possession from 1986
Yes - her open, continuous and uninterrupted occupation since 1986 extinguished the registered owner's title after 12 years
The court found the plaintiff purchased Plot 296 from Margaret Thitu Njenga in 1986, fenced it, erected structures for workers, and cultivated it openly. DW1 admitted the plaintiff was on the land without the 1st defendant's consent. The HCCC 6206 of 1992 suit did not interrupt possession because the plaintiff was not a party and the consent order did not bind her.
Effect of the transfer to the 2nd Defendant
The transfer did not defeat the plaintiff's accrued adverse possession rights; the property passed subject to her overriding interest
By the time of the 2006/2007 transfer, the plaintiff had occupied for over 12 years and the 1st defendant's title had been extinguished. Relying on Githu v Ndeete and Section 28 of the Land Registration Act, the court held adverse possession runs with the land irrespective of change in proprietorship, so the 2nd defendant took subject to the overriding interest.
Whether absence of encumbrances on the register justified the sale
No - the plaintiff's unregistered adverse possession right was an overriding interest not appearing on the register
The court held that the register's cleanliness did not legitimise the transfer because rights acquired under the limitation of actions legislation need not be noted on the register. The 2nd defendant's indefeasibility under Section 26 LRA could not shield her from a right that had already accrued against the 1st defendant's title.
Whether the consent order in HCCC 6206 of 1992 interrupted adverse possession
No - the plaintiff was not a party and the consent order could not bind her
The 1st defendant argued time should run from 2002 when the consent judgment was entered. The court found the plaintiff was neither party to nor aware of that suit, the consent order was between the plaintiff therein and only some defendants, and it was not determined on merit, so it could not interrupt her possession.
Legal principles established
#- A change of ownership of land occupied by an adverse possessor does not interrupt the running of adverse possession
- Adverse possession constitutes an overriding interest under Section 28 of the Land Registration Act that binds a transferee notwithstanding an unencumbered register
- A registered proprietor whose root of title is challenged must prove the legality of the acquisition beyond the title instrument
Court orders
#- 1.Agnes Wambui Karungu declared to have acquired title by adverse possession of Plot No.296 Thome Farmers No.5 Limited, now known as LR. NO.13330/48
- 2.Chief Land Registrar directed to cancel the registration of Millicent Wanjiru Ngotho as proprietor of LR. NO.13330/48 and of any person deriving title from the 2nd Defendant, and to rectify the register by entering the plaintiff as registered proprietor within ninety (90) days
- 3.1st defendant to refund to the 2nd defendant the value of the suit property as per the valuation report
- 4.Costs of the suit to be borne by the Defendants
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over a claim for title by adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karungu v Joreth Limited & another", Case Analysis (2023). Environment & Land Case 671 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20813/eng@2023-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.