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ELCDismissedOriginating Summons dated 18th January, 2021 (amended 20th January, 2021)· [2024] KEELC 1270 (KLR)

Hathinge Self Help Group (With a Membership of 293 Members and Suing Through the Registered Officials James Nzeru Musembi, Daniel Mutinda Ndwiki and Harrison Mutunga Wambua) v Co-operative Bank Housing Co-operative Society Ltd (Enviromental and Land Originating Summons E001 of 2021) [2024] KEELC 1270 (KLR)

Environment and Land Court
6 March 2024
ANA. Nyukuri
4,064 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, Hathinge Self Help Group, an official-represented society of 293 members, sued by originating summons claiming title to LR No. 14750/2 (or resultant subdivisions) by adverse possession, alleging occupation since 1980, cultivation, and construction of permanent and semi-permanent houses, and sought a permanent injunction restraining the defendant from interfering with the property. The defendant, Cooperative Bank Housing Cooperative Society Limited, denied the claim, asserting it purchased the 48-acre property in 2012 from Pozzolana Stones Limited for Kshs. 268,900,000, subdivided it into three parcels in 2014, and that the property was fenced and vacant at purchase per valuation reports. It contended the plaintiff's members invaded the land on 7th December, 2019 and were land grabbers. The court identified a sole issue: whether the plaintiff proved adverse possession. Applying the Limitation of Actions Act (Sections 7, 13, 17 and 38) and case law, the court required proof of exclusive, open, continuous and uninterrupted occupation for at least 12 years. It found the plaintiff's group was registered only on 5th December, 2019, many members were born after 1980, and the claim of entry through parents was an unpleaded afterthought. Valuation reports showed the property vacant as at 2016, and no rates or rent payments by the alleged occupants were evidenced. The court preferred the defendant's evidence and dismissed the suit with costs. Judgment was delivered virtually at Machakos on 6th March, 2024 by A. Nyukuri, Judge.

Key legal issues

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01

Whether the plaintiff proved adverse possession of the suit property for the statutory period of 12 years

Holding

The plaintiff failed to prove adverse possession; the group was not in existence in 1980, many members were born after 1980, and valuation reports showed the property vacant as at 2016

Reasoning

The court found the registration certificate showed the Self Help Group was registered on 5th December, 2019 and could not have occupied the land since 1980. Identity cards showed many members were born after 1980. The claim that members' parents entered the land in 1980 was an unpleaded afterthought, the parents not being parties. Valuation reports of 2012 and 2016 showed the property fenced and vacant, and no rates or rent were paid by the alleged occupants.

p. 7
02

Whether permanent injunction should issue to restrain the defendant from interfering with the suit property

Holding

Refused, as it was premised on the failed adverse possession claim

Reasoning

Since the foundational claim of adverse possession failed, the ancillary relief of a permanent injunction could not stand. The court found the plaintiff's members invaded the property on 7th December, 2019 and began erecting structures to legitimize their claim, and the defendant was the registered proprietor of the suit property and the subdivided parcels.

p. 8

Legal principles established

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  • To prove adverse possession a claimant must demonstrate exclusive, open, continuous and uninterrupted occupation without the owner's consent for at least 12 years, dispossessing the true owner
  • A party cannot introduce a new basis of claim (occupation through parents) not pleaded or raised in witness statements, at the hearing

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.The plaintiff to pay the defendant's costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13(1), (2), (3)
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 38(1) and (2)

Cases cited (4)

  • Chevron (K) Limited v. Harrison Charo Wa Shutu
    (2016) eKLR
  • Adnam v. Earl of Sandwich
    (1877) 2 QB 485
  • Richard Wefwafwa Songoi vs. Ben Munyifwa Songoi
    [2020] eKLR
  • Wambugu v. Njuguna
    [1983] KLR 173
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act Cap 22 (adverse possession claim under Section 38); Environment and Land Court

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, "Hathinge Self Help Group (With a Membership of 293 Members and Suing Through the Registered Officials James Nzeru Musembi, Daniel Mutinda Ndwiki and Harrison Mutunga Wambua) v Co-operative Bank Housing Co-operative Society Ltd (Enviromental and Land Originating Summons E001 of 2021) [2024] KEELC 1270 (KLR)", Case Analysis (2024). Originating Summons dated 18th January, 2021 (amended 20th January, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1270/eng@2024-03-06

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