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ELCAllowedLand Case 217 of 2018· [2023] KEELC 20822 (KLR)

Mbogho & another v Muruu & 2 others

Environment and Land Court of Kenya
12 October 2023
LNL.L. Naikuni
10,273 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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A Mombasa court gave two buyers title to 5 acres in Kilifi after nearly 40 years of open occupation, ruling adverse possession trumped the registered owner's family.

What this practically means

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Executive summary

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The 1st and 2nd Plaintiffs sued by Originating Summons (later converted to a Plaint) claiming five (5) acres of Plot Kilifi/Mtwapa/592 by adverse possession and as purchasers. They alleged the deceased, Mumba Muruu, sold the 5 acres to the 2nd Plaintiff in 1986 for Kshs 70,000, that the price was paid in full, Kilifi Settlement Office and the Land Control Board approved the transfer and sub-division, and possession was taken, but registration stalled because the deceased refused to sign mutation forms. The 1st Plaintiff later bought the interest from her brother in 2002 and occupied and developed the land. The Defendants conceded the agreement and payment but asserted the family never consented, the land was a settlement scheme, and the Plaintiffs never took open possession. The court framed three issues: merit of the suit, entitlement to relief by adverse possession or purchase, and costs. Applying Sections 7, 13 and 38 of the Limitation of Actions Act and the nec vi, nec clam, nec precario strictures, it held the Plaintiffs proved open, exclusive possession with animus possidendi, that a purchaser may claim adverse possession after final payment, and that the deceased held the title in trust for them. It rejected the public-land/settlement-scheme defence, finding the land was registered privately in 2006. Judgment was entered for the Plaintiffs with declarations of ownership, orders for sub-division, transfer and registration within 45 days, default execution by the Deputy Registrar, and costs against the 1st and 2nd Defendants jointly and severally.

Key legal issues

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01

Whether the Plaintiffs acquired the 5 acres by adverse possession

Holding

Yes - the Plaintiffs proved open, exclusive and uninterrupted possession ousting the deceased and his family, and a purchaser may claim adverse possession after final payment of the purchase price

Reasoning

The court applied Sections 7, 13 and 38 of the Limitation of Actions Act and the nec vi, nec clam, nec precario strictures. It found the Plaintiffs fenced, occupied and developed the land with permanent structures, farming and commercial use in full view and knowledge of the deceased and his family, demonstrating animus possidendi, and that the deceased and Defendants failed to assert their rights within the limitation period.

p. 14
02

Whether the Plaintiffs were innocent purchasers for value

Holding

Yes - the sale agreement of 26th August 1986 was executed, the full purchase price paid, consents obtained and possession taken; only the deceased's failure to sign mutation forms stalled registration

Reasoning

The court found the sale agreement undisputed, payment made in full, Kilifi Settlement Office approval and Land Control Board consent obtained, and possession taken. The Defendants conceded the agreement and payment. The court held the deceased held the title in trust for the Plaintiffs and that the Defendants' settlement-scheme/public-land argument was unfounded absent evidence of government interest.

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Whether the land was public land under a settlement scheme and thus unavailable for the claim

Holding

No - the land was registered to the deceased on 29th August 2006 with a certificate of title, converting it to private land

Reasoning

The court relied on the certificate of title and official searches showing registration in the deceased's name, holding the Government ceased to have interest after registration and that the Defendants produced no empirical documentary evidence of any government interest in the land.

p. 15

Legal principles established

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  • A purchaser in possession may claim adverse possession once the final instalment of the purchase price is paid, and possession must be nec vi, nec clam, nec precario
  • Where a registered proprietor's title is defeated by adverse possession, the registered proprietor holds the title in trust for the adverse possessor
  • Once land under a settlement scheme is registered to a private individual with a certificate of title, the Government ceases to have an interest and it becomes private land

Court orders

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  1. 1.Judgment entered in favour of the 1st and 2nd Plaintiffs and against the 1st and 2nd Defendants jointly and severally
  2. 2.Declaration that the 1st and 2nd Plaintiffs are entitled to be registered as legal and absolute owners of five (5) acres of Land Reference Kilifi/Mtwapa/592 by way of Land Adverse Possession and purchase through the sale agreement executed on 26th August 1986
  3. 3.The 1st and 2nd Legal Administrators of the Estate of Mumba Muruu Kalio to recognize the Plaintiffs' proprietary interest in five (5) acres of Plot Kilifi/Mtwapa/592 as a liability of the Estate and to settle the same by sub-dividing and transferring it to the Plaintiffs
  4. 4.The 3rd Defendant directed to register and issue the Plaintiffs with title deeds from the sub-division of parcel Kilifi/Mtwapa/592 deriving a portion of 5 acres within 45 days from the date of judgment
  5. 5.In default, the Deputy Registrar of the Environment and Land Court to execute all prerequisite approval and transfer documents to complete the sub-division and transfer of the 5 acres to the Plaintiffs
  6. 6.Costs of the suit to be borne by the 1st and 2nd Defendants jointly and severally

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 38(1), 38(2)
  • Civil Procedure Rules 2010Order 37 Rules 1, 7, 11, 16
  • Constitution of Kenya 2010Articles 24, 40, 162(2)
  • Environment and Land Court ActSection 13
  • Land ActSection 7
  • Land Registration ActSections 24, 25, 26(1)
  • Civil Procedure ActSection 27(1)

Cases cited (13)

  • Sisto Wambugu v Kamau Njuguna
    (1983) eKLR

    Adverse possession principles relied on by Plaintiffs' counsel

  • Kynoch Limited v Rowland
    (1912) 1 Ch 527, 534

    Continuous dispossession in adverse possession

  • Leigh v Jack
    1879 5 EX D 264 272

    Dispossession of the title holder

  • Gabriel Mbui v Mukundia Maranya
    (1993) eKLR

    Colour of title; registered proprietor holds title in trust for adverse possessor

  • Kahindi Ngala Mwagandi v Mtana Lewa
    [2021] eKLR

    Strictures for adverse possession - nec vi, nec clam, nec precario; Article 24 limitations

  • Teresa Wachuka Gachira v Joseph Mwangi Gachira
    Civil Appeal No. 325 of 2003

    Importance of prescribed procedure and proof of exclusive continuous possession for 12 years

  • Kyeyu v Omuto
    Civil Appeal No. 8 of 1990

    Need to exhibit copy of title document in adverse possession claims

  • Johnson Kinyua v Simon Gitura
    Civil Appeal No. 265 of 2005

    Existence and proprietorship of land proved by extract of title or certificate of official search

  • Kimani Ruchine v Swift Rutherford & Co. Ltd
    (1980) KLR

    Plaintiff must prove use as of right - nec vi, nec clam, nec precario; continuous possession

  • Wanyoike Gathire v Beverly
    (1965) EA 514

    Possession must be continuous and not broken

  • Annah Kimitei v Isaack Kipketer Talam & 2 Others
    Eldoret ELC No. 84 of 2018

    Bona fide purchaser for value without notice doctrine

  • Weston Gitonga & 10 Others v Peter Rugu Gikanga & Another
    [2017] eKLR

    Cited Katende v Haridar with approval on bona fide purchaser elements

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

    Elements a purchaser must prove to rely on the bona fide purchaser doctrine

Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act and Section 38 of the Limitation of Actions Act

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, "Mbogho & another v Muruu & 2 others", Case Analysis (2023). Land Case 217 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20822/eng@2023-10-12

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