Mwihike Farmers Company Limited v Karitu & another; Omega Commercial Services Ltd & 3 others (Interested Parties) (Suing as the Officials of Springfield (148) Residents Welfare Association) (Enviromental and Land Originating Summons 1172 of 2016) [2024] KEELC 1786 (KLR)
The bottom line
#A company that occupied and developed 4 acres of Kenyan land openly for 23 years won ownership through adverse possession, even without the registered owner's consent.
What this practically means
#Executive summary
#Key legal issues
#Whether a case of adverse possession was established
Yes - the Plaintiff and the 2nd Interested Party proved on a balance of probabilities that they took possession in 1998 and have openly, continuously and exclusively occupied and developed the 4 acres for over 23 years, extinguishing the Defendants' title.
The court set out the statutory framework under Section 38 of the Limitation of Actions Act and the elements in Gabriel Mbui v Mukindia Maranya and Samuel Kihamba v Mary Mbaisi: open occupation without force, secrecy or permission, with animus possidendi, for at least 12 years. Evidence showed the Plaintiff purchased 4 acres from Peter Kaigua in 1998, paid the full price, took possession, subdivided and sold to 40 members who built homes and commercial structures openly, while the vendor's own documentation showed the allocation. The Defendants did not displace this evidence.
Whether the Plaintiff is entitled to the reliefs sought
Yes - having proved the claim to the required standard, the Plaintiff was granted the declaration of title by adverse possession, permanent injunction and rectification of the register.
Once the court found the elements of adverse possession proved, it followed that the reliefs in the Re-Amended Originating Summons - declaration of adverse possession, permanent injunction and cancellation of the 1st Defendant's registration with rectification of the register in favour of the Plaintiff - were appropriate and were granted in full.
Legal principles established
#- To succeed in adverse possession a claimant must prove exclusive, continuous, open occupation of the suit land for at least 12 years without the owner's permission (nec vi, nec clam, nec precario), with animus possidendi.
Court orders
#- 1.Mwihike Farmers Company Limited declared to have acquired title by adverse possession to a portion measuring four (4) acres out of LR. No. 6845/148, and a permanent injunction issued restraining the Defendants from interfering with the Plaintiff's or its members' possession and title to the suit property
- 2.The registration of Francis Kaigua Karitu as proprietor of a portion measuring four (4) acres out of LR. No. 6845/148, and of any other person deriving title from Githunguri Njiru Farm (1966) Limited and Peter Karitu Kaigua, cancelled forthwith, and the Registrar of Titles directed to rectify the register to enter and issue title in the name of the Plaintiff as registered proprietor of a portion measuring 4 acres out of LR. No. 6458/148
- 3.Each party to bear own costs of the suit
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (original jurisdiction of the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwihike Farmers Company Limited v Karitu & another; Omega Commercial Services Ltd & 3 others (Interested Parties) (Suing as the Officials of Springfield (148) Residents Welfare Association) (Enviromental and Land Originating Summons 1172 of 2016) [2024] KEELC 1786 (KLR)", Case Analysis (2024). Re-Amended Originating Summons dated 21st October, 2021 (ELC), Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1786/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.