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ELCDismissedOriginating Summons dated 13th April 2023· [2024] KEELC 1825 (KLR)

Chege & another v Kamau & another (Enviromental and Land Originating Summons E010 of 2023) [2024] KEELC 1825 (KLR)

Environment and Land Court
4 April 2024
6,687 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a land buyers' adverse possession claim because they never paid the final instalment and couldn't prove open, exclusive possession.

What this practically means

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Executive summary

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By an Originating Summons dated 13th April 2023, the Plaintiffs, Jacob Edward Maina Kariuki Chege and Keziah Njeri Chege, sued Martha Wangari Kamau and Patrick Karanja Kamau as legal representatives of the estate of Francis Kamau Ezekiel (deceased), seeking a declaration that the deceased's title to 0.9 acres of parcel Loc 12/Sub Loc 1/2174 had been extinguished by adverse possession and an order for registration in their names. They claimed they bought the 0.9 acres in 1997 for Kshs 210,000/= under a written agreement, paying Kshs 159,000/= with Kshs 51,000/= outstanding pending Land Control Board consent, and had occupied and cultivated the land since 1997. The Defendants denied the sale, the signing of the agreement and the Plaintiffs' possession, asserting the Plaintiffs were trespassers discovered only in 2022. The 2nd Plaintiff testified, as the 1st Plaintiff could not speak coherently; both Defendants testified. The court framed a single issue: whether the Plaintiffs established the threshold for adverse possession. It held the land was registered in the deceased's name since 1996 (treating the Certificate of Official Search as prima facie evidence under section 35 of the Land Registration Act), but noted the Plaintiffs failed to annex a certified extract of title, a mandatory requirement of Order 37 rule 7. It found the alleged entry permissive under the sale agreement, that time runs only from payment of the last instalment, which was never made, and that the Plaintiffs failed to prove open, exclusive possession dispossessing the owner, having called no independent witnesses or produced photographic or valuer's evidence. The suit was dismissed entirely with costs to the Defendants.

Key legal issues

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01

Whether a certified extract of title is mandatory in an adverse possession claim

Holding

Although the Plaintiffs only annexed a Certificate of Official Search from 2001, the court treated it as prima facie evidence of ownership under section 35 of the Land Registration Act and held the land registered in the name of Francis Kamau Ezekiel (deceased) since 1996

Reasoning

Order 37 rule 7 requires a certified extract of title, which the Plaintiffs did not produce; the court noted the mandatory nature of the provision but took refuge in section 35(1) & (2) of the Land Registration Act, which presumes documents signed by a Registrar and receives certified copies as prima facie evidence. The Defendants did not deny the proprietorship shown in the search. The court found the suit land registered in the name of Francis Kamau Ezekiel (deceased), represented by the 2nd Defendant as administrator.

p. 7
02

Whether entry through a sale agreement can ground adverse possession

Holding

Entry under a sale agreement is permissive and becomes adverse only upon payment of the last instalment; since a balance of Kshs 51,000/= remained unpaid, time never started to run

Reasoning

The Plaintiffs' alleged entry was through purchase under sale agreements dated 1997. Entry with the owner's consent or under an agreement for sale cannot be hostile. Time only begins to run on payment of the last instalment of the purchase price. The Plaintiffs admitted a balance of Kshs 51,000/= remained, to be paid upon Land Control Board consent, so limitation never began. Occupation by consent or licence accrues no right of adverse possession.

p. 11
03

Whether the Plaintiffs proved actual, open and exclusive possession dispossessing the owner

Holding

The Plaintiffs failed to prove open, exclusive possession inconsistent with the owner's title; their evidence was uncorroborated and they failed to call independent witnesses, the agreement witness, or produce photographic or valuer's evidence

Reasoning

The claim was a word-against-word contest. The Plaintiffs did not call the witness to the sale agreement, Harun Irungu, or any neighbours or local administration to corroborate occupation. No photographic evidence or Land Valuer's report was produced to show activities inconsistent with the registered owner's possession. The Defendants' move to Nyahururu and leaving land unused did not amount to abandonment; occupation must be open and with the owner's knowledge for time to run.

Legal principles established

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  • An Originating Summons for adverse possession must be supported by an affidavit to which a certified extract of title is annexed, and the requirement is mandatory
  • In a purchase scenario, time for adverse possession runs only from payment of the last instalment of the purchase price
  • A certificate of official search signed by a Registrar is prima facie evidence of its contents under section 35 of the Land Registration Act

Court orders

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  1. 1.The Originating Summons dated 13th April 2023 is dismissed entirely
  2. 2.Costs of the suit awarded to the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Limitation of Actions Act (Cap 22)section 7
  • Limitation of Actions Act (Cap 22)section 13
  • Limitation of Actions Act (Cap 22)section 17
  • Limitation of Actions Act (Cap 22)section 38(1) and (2)
  • Land Actsection 7(d)
  • Land Registration Actsection 35(1) & (2)
  • Land Registration Actsection 28(h)
  • Evidence Actsections 107, 108 and 109

Cases cited (20)

  • Kiprono Arap Soi vs Peter Murmumet Tompoi & Anor
    (2016) eKLR
  • Titus Kasuve vs Mwaani Investment Ltd & 4 Others
    (2004) eKLR
  • Elizabeth Cheboo vs Mary Cheboo Gimyigei
    Civil Appeal No. 40 of 1978
  • Mombasa Teachers Cooperative Savings & Credit Society Ltd vs Robert Muhambi Katana & 15 others
    (2018) eKLR
  • Samuel Miki Waweru vs Jane Njeru Richu
    Civil Appeal No. 122 of 2001
  • Jandu vs Kirpal
    (1975) E.A 225
  • Wambugu vs Njuguna
    Civil Appeal No. 10 of 1992
  • Aloise Kariuki Ireri vs Jackson Ngari Nthia & Another
    (2010) eKLR
  • Kasuve vs Mwaani Investments Ltd & 4 others
    (2004) eKLR
  • Gachuma Gacheru vs Maina Kabuchwa
    [2016] eKLR
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Gabriel Mbui vs Mukindia Maranya
    (1993) eKLR
  • Mbira vs Gachuhi
    (2002) 1 EALR 173
  • Simon Nganga Njoroge vs Daniel Kinyua Mwangi
    (2015) eKLR
  • Wambugu vs Kamau
    (1989) KLR 173
  • Wanyoike v Kahiri
    [1979] KLR
  • Sisto Wambugu vs Kamau Njuguna
    (1983) eKLR
  • Eunice Karimi Kibunja vs Mwirigi M'ringera Kibunja
    (2013) eKLR
  • Samuel Kihamba vs Mary Mbaisi
    (2015) eKLR
  • Mwinyi Hamisi Ali vs Attorney General & Philemon Mwaisaka Wanaka
    Civil Appeal No. 125 of 1997
Jurisdiction invoked
Original jurisdiction under Order 37 Rule 7 of the Civil Procedure Rules and section 38 of the Limitation of Actions Act (Cap 22)

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, "Chege & another v Kamau & another (Enviromental and Land Originating Summons E010 of 2023) [2024] KEELC 1825 (KLR)", Case Analysis (2024). Originating Summons dated 13th April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1825/eng@2024-04-04

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