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ELCDismissedEnviromental and Land Originating Summons E008 of 2023· [2023] KEELC 21743 (KLR)

Gichuhi (Suing as the Legal Representative of the Estate of Wanjiku Waititu) v Kihumba

Environment and Land Court
24 November 2023
1,588 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to throw out an adverse possession land claim, ruling that missing title documents are not fatal when there are genuine issues to try.

What this practically means

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Executive summary

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The defendant applied by notice dated 19th October 2023 for striking out of the plaintiff's Originating Summons claiming adverse possession of Plot No. 604 Temiyotta Scheme, arguing that the suit violated Section 38 of the Limitation of Actions Act and Order 37 Rule 7(2) of the Civil Procedure Rules because no title deed or certified extract of title was annexed, and that adverse possession can only lie against a registered proprietor. The plaintiff, suing as legal representative of the estate of Wanjiku Waititu, responded that her deceased mother purchased the plot from the defendant in 1986, obtained a decree of specific performance in Nakuru High Court Civil Suit No. 341 of 1991 on 3rd March 1993, and that the family has occupied the land openly for over 30 years, execution having been frustrated by insecurity and the deceased's illness until her death in 2018. Ombwayo J held that the 1993 decree expired on 29th April 2005 under Section 7 of the Limitation of Actions Act, from which date time for adverse possession ran, maturing on 29th April 2017. Applying the settled principles that striking out is draconian and reserved for the clearest of cases (Co-operative Merchant Bank v Wekesa; Yaya Towers v Trade Bank; D.T. Dobie v Muchina), the court found triable issues despite the absence of evidence of registration, since there was evidence the plot belongs to the defendant and the plaintiff is in possession. The application was dismissed with costs.

Key legal issues

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01

Whether absence of an annexed title deed is fatal to an adverse possession suit

Holding

No - lack of evidence of registration is not fatal where there is evidence the plot belongs to the defendant and the plaintiff is in possession

Reasoning

The court acknowledged there was no evidence the suit property is registered, but held that striking out is a draconian remedy reserved for plain cases. Since there was evidence the plot belongs to the defendant and the plaintiff is in occupation, triable issues existed and the suit had to proceed to trial.

p. 4
02

When time for adverse possession begins to run against a decree holder

Holding

Time ran from expiry of the 12-year period for executing the 1993 decree, i.e. 29th April 2005, maturing on 29th April 2017

Reasoning

The court found an existing judgment and decree of 29th April 1993 in the plaintiff's favour. Under Section 7 of the Limitation of Actions Act a judgment cannot be enforced after 12 years, so the decree expired on 29th April 2005, from which date adverse possession time ran, maturing 12 years later.

p. 2
03

Estoppel by lapse of time against recovery of land

Holding

The defendant is estopped from recovering the land occupied by the plaintiff due to lapse of time

Reasoning

Relying on Section 7 of the Limitation of Actions Act barring actions to recover land after twelve years, the court reasoned that the defendant cannot move to recover the land occupied by the plaintiff given the passage of time since the decree expired.

p. 2

Legal principles established

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  • Striking out of pleadings should be done only in the clearest of cases
  • A judgment may not be enforced after twelve years under Section 7 of the Limitation of Actions Act

Court orders

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  1. 1.The defendant's application dated 19th October 2023 seeking to strike out the Originating Summons is dismissed
  2. 2.Costs of the application to the plaintiff
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over adverse possession claims relating to land

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, "Gichuhi (Suing as the Legal Representative of the Estate of Wanjiku Waititu) v Kihumba", Case Analysis (2023). Enviromental and Land Originating Summons E008 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21743/eng@2023-11-24

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