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ELCAllowedEnvironment & Land Case 43 of 2019· [2023] KEELC 21469 (KLR)
Kariuki & 2 others (As Personal Representatives of the Estate of Stephen Mungai alias Stephen Mungai S. Kamau alias Stephen Mungai Samwel Kamau - Deceased) v Libey Njoki Munene And James Chege Munene (As Personal Representatives of the Estate of James Flavian Chege Munene) & 7 others
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·~10 min to read original · ~4 min briefThe bottom line
#A Nairobi court declared a family the rightful owners of Eastleigh land they had openly occupied since the 1970s, winning through adverse possession.
What this practically means
#Executive summary
#The Plaintiffs, personal representatives of the Estate of Stephen Mungai S. Kamau, brought an Originating Summons dated 5th February 2019 under Section 38 of the Limitation of Actions Act, Order 37 Rule 7 of the Civil Procedure Rules and Section 7(d) of the Land Act, seeking a declaration that they had been in adverse possession of approximately 0.1006 of an acre known as LR 36/1/892 in Eastleigh, Nairobi, and orders for its registration in their names on behalf of the estate, plus consequential transfer orders. They deponed that the late Stephen Mungai purchased two parcels from the Kibibana Farm partnership in 1975; only LR 36/1/891 was transferred to his wife Mary Muthoni Mungai, while the suit property remained registered in the names of the deceased partners, though the family occupied it openly and continuously without interruption. A 2003 acknowledgement by the surviving directors of Kibibana Limited confirmed the sale. None of the Defendants entered appearance or filed a response despite service, including substituted service. The court framed one issue: whether the Plaintiffs had acquired title by adverse possession. Applying Gabriel Mbui v Mukindia Maranya, Wambugu v Njuguna and Kimani Ruchine v Swift, Rutherford Co. Ltd, the court found the possession was open, continuous, exclusive and with the owners' knowledge of ouster, and held the Plaintiffs entitled on a balance of probabilities. The Originating Summons was allowed: the Plaintiffs were declared absolute owners through adverse possession since 1978, the Chief Land Registrar was directed to issue the title document, and each party was ordered to bear their own costs.
Key legal issues
#01
Whether the Plaintiffs acquired title to LR 36/1/892 by adverse possession
Holding
Yes - the Plaintiffs proved adverse possession since 1975/1978 and are entitled to be registered as absolute owners on behalf of the Estate of Stephen Mungai S. Kamau.
Reasoning
The late Stephen Mungai bought two parcels from the Kibibana Farm partnership in 1975; only one was transferred to Mary Muthoni Mungai. The family occupied the untransferred parcel openly, continuously and without interruption, with the knowledge of the registered owners. A 2003 acknowledgement by the surviving directors of Kibibana Limited confirmed the sale and the ouster, showing the true owners knew they were dispossessed and parted with possession.
Legal principles established
#- A claimant in adverse possession must prove physical entry, actual possession for the statutory period, non-permissive, exclusive, open, continuous and notorious possession with animus possidendi over an identifiable portion of land.
- Proof of adverse possession is assessed by whether the title holder has been dispossessed or has discontinued possession for the statutory period, not merely by the claimant's length of possession.
Court orders
#- 1.Declaration that Elizabeth Njoki Kariuki, George Machemo Mungai and Elizabeth Njoki Mungai (Personal Representatives of the Estate of Stephen Mungai S. Kamau) have been in adverse possession of approximately 0.1006 of an acre known as LR 36/1/892, Eastleigh, Nairobi since 1978 and are the absolute owners thereof, to be registered in their names on behalf of the Estate of Stephen Mungai S. Kamau
- 2.The Chief Land Registrar to comply with the above order by issuing to the Plaintiffs the title document in respect of LR 36/1/892
- 3.Each party to bear his/her own costs
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act; Order 37 Rule 7 of the Civil Procedure Rules; Section 7(d) of the Land Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki & 2 others (As Personal Representatives of the Estate of Stephen Mungai alias Stephen Mungai S. Kamau alias Stephen Mungai Samwel Kamau - Deceased) v Libey Njoki Munene And James Chege Munene (As Personal Representatives of the Estate of James Flavian Chege Munene) & 7 others", Case Analysis (2023). Environment & Land Case 43 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21469/eng@2023-11-09
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