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ELCDismissedOriginating Summons dated 13.08.2018, filed 12.09.2018· [2024] KEELC 1435 (KLR)

Bedan v Diocese of Embu Trustees Registered (Environment and Land Case 36 of 2018) [2024] KEELC 1435 (KLR)

Environment and Land Court
5 March 2024
2,464 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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An Embu court dismissed a man's claim to 1.34 acres because he couldn't prove 12 years of open, continuous occupation of the land.

What this practically means

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Executive summary

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The plaintiff, Alexander Karioko Bedan, filed an Originating Summons dated 13.08.2018 against the Diocese of Embu Trustees Registered, claiming 1.34 acres out of land parcel Gaturi/Nembure/3120 by way of adverse possession, and seeking a declaration that the defendant's title to that portion had been extinguished and an order for its transfer to him. The defendant, through a replying affidavit sworn by Rev. Fr. John Macharia Njeru, denied the claim, explaining that it received the suit land as a gift for construction of a church, that the plaintiff had defaced the common boundary in 2011 in an act of trespass, and that the boundary was fixed by the District Surveyor in 2012 after which the plaintiff was removed from the suit portion. At the hearing only the plaintiff testified for his case while Father John Njeru Macharia testified for the defendant. The plaintiff was the sole witness in his case and could not show that others knew of his alleged possession. The court, applying Mtana Lewa v Kahindi Ngala Mwagandi, Richard Wefwafwa Songoi v Ben Munyifwa Songoi, Wambugu v Njuguna and Mbira v Gachuhi, and section 13 of the Limitation of Actions Act, held that adverse possession requires continuous, visible, open and notorious possession for twelve years. The plaintiff had admitted the portion claimed was an open and unoccupied space, his attempts to cultivate it had been thwarted, and the defendant demonstrated actual physical control. The suit was dismissed in its entirety with costs to the defendant.

Key legal issues

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01

Whether the plaintiff established adverse possession of 1.34 acres out of Gaturi/Nembure/3120

Holding

The claim failed; the plaintiff was not in actual or ostensible possession of the suit land and did not prove twelve years of continuous, open and notorious possession

Reasoning

The plaintiff admitted the portion claimed was an open and unoccupied space between his parcel and the defendant's church. His attempts to use the land were thwarted by the defendant, which demonstrated actual physical control. He was the sole witness and adduced no evidence that others knew of his possession, so the notoriety element of adverse possession was not satisfied.

p. 4
02

The elements of adverse possession under Kenyan law and the Limitation of Actions Act

Holding

Adverse possession requires possession that is neither by force, stealth nor licence, and which is continuous, visible, open and notorious for twelve years, with the true owner dispossessed or having discontinued possession

Reasoning

The court adopted the definition in Mtana Lewa v Kahindi Ngala Mwagandi and the requirements in Richard Wefwafwa Songoi v Ben Munyifwa Songoi, read with section 13(1&2) of the Limitation of Actions Act and the classic statements in Wambugu v Njuguna and Mbira v Gachuhi, that the title holder must have been dispossessed or discontinued possession for the statutory period.

p. 4

Legal principles established

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  • A claimant seeking title by adverse possession must prove continuous, uninterrupted, visible, open and notorious possession for the statutory period of twelve years, excluding the true owner
  • Notoriety of possession requires evidence that persons other than the claimant knew of his possession

Court orders

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  1. 1.The plaintiff's suit is dismissed in its entirety
  2. 2.Costs of the suit to the defendant

Authorities

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Legislation

  • Limitation of Actions ActSection 13(1&2)

Cases cited (8)

  • Margaret Wangui Njugi & 2 Others v George Kimani & Anor
    (2019) eKLR
  • Ruth Wangari Kanyagia v Josephine Muthoni Kinyanjui
    (2017) eKLR
  • Kamataka Board of Wakf v Government of India & Others
    (2004) 10 SCC 779
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Otwoma v Ombele
    (Environment & Land Case 13 of 2021) [2022] KEELC 2522 (KLR) (10 May 2022)
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR
  • Wambugu v Njuguna
    (1983) KLR 172
  • Mbira v Gachuhi
    (2002) 1 EA(LR) 137
Jurisdiction invoked
Environment and Land Court jurisdiction over adverse possession claims under 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, "Bedan v Diocese of Embu Trustees Registered (Environment and Land Case 36 of 2018) [2024] KEELC 1435 (KLR)", Case Analysis (2024). Originating Summons dated 13.08.2018, filed 12.09.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1435/eng@2024-03-05

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