Gakumo & 2 others v Kamau (Being Sued as the Legal Representative of the Estate of Kariuki Kamau -Deceased) & 2 others (Enviromental and Land Originating Summons E025 of 2021 & Environment & Land Case E053 of 2021 (Consolidated)) [2024] KEELC 3293 (KLR)
The bottom line
#The Environment and Land Court in Murang'a dismissed an adverse possession claim and ordered two long-time occupants evicted from land registered to a deceased owner.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants acquired the suit land by adverse possession
No. Their entry in 1982 was permissive (by purchase from the Society), they did not know the registered owner until 2016, and even reckoning time from the 2010 notice to vacate, 12 years had not elapsed when the suit was filed in 2021
The court held that entry through purchase from the original owner was with permission and not with intent to dispossess. Time could not run against Kariuki Kamau before 1988 registration, and the Applicants did not know him until 2016. Alternatively, the 2010 notice interrupted time, which would only expire in 2022, after the 2021 filing. The claim of adverse possession therefore had not crystalized.
Whether the Defendants' claim that Ballot No. 79 corresponded to the suit land was proved
No. No documentary evidence linked Ballot No. 79 to Plot 992; the Presidential Commission's book did not name the Defendants, and plot 992 was listed as an asset of the Co-operative Tribunal
The Defendants bore the burden of linking their alleged ballot to the suit land. The Chief's witness and the Society's chairman gave only oral evidence of the link, and the chairman admitted having no documents showing ballot No. 79 became Plot No. 992. The identity of Veronica Wanjiku Gakumo on the baptism card was also contradicted by the ID of the witness. The claim therefore failed on proof.
Whether the Plaintifi in E053 of 2021 is entitled to eviction of the Defendants
Yes. Kariuki Kamau was the registered owner from 5th December 1988, his title was unchallenged by evidence, and the Defendants are trespassers entitled to be evicted
The Plaintifi produced the title deed and grant of letters of administration. The Defendants challenged the acquisition as fraudulent but adduced no evidence of fraud or illegality under section 26 of the Land Registration Act. The Green Card showed registration in 1988 and no society complaint preceded the suit. Having failed to prove ownership or adverse possession, the Defendants' occupation was an encroachment and vacant possession was ordered.
Whether PW1 was a truthful witness
The court found PW1 was not truthful, as she denied working for the Society while the chairman confirmed she served as its secretary
PW1 denied ever working for Gathaite Farmers Co-operative Society, but PW4, the chairman, confirmed that PW1 had worked as the Society's secretary for a long time. The court treated this contradiction as undermining PW1's credibility, supporting the finding that her occupation originated in permissive arrangements connected to the Society.
Legal principles established
#- For adverse possession to attach, entry must be non-permissive, and time runs only from when the possession becomes adverse to a known registered owner
- A claim of wrongful acquisition of title is distinct from and cannot substitute for a claim of adverse possession
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, impeachable only on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition, which must be proved by the challenger
Court orders
#- 1.The Applicants' Originating Summons dated 5th July 2021 in E025 of 2021 is dismissed entirely with costs to the Respondent
- 2.The Defendants' Counter-claim in MCELC No. E053 of 2021 is dismissed entirely with costs to the Plaintifi
- 3.The Defendants in MCELC No. E053 of 2021, Veronica Wanjiku and Francisca Njeri, are directed to vacate the suit land Makuyu/Makuyu/Block 2/992 and give vacant possession to the Plaintifi within 120 days from the date hereof
- 4.Failure to vacate within 120 days, eviction order to issue in the manner prescribed by section 152 of the Land Act
- 5.Costs of the suits awarded to the Respondent/Plaintiff
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act over land claims including adverse possession and eviction (Limitation of Actions Act, Cap 22, section 38)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gakumo & 2 others v Kamau (Being Sued as the Legal Representative of the Estate of Kariuki Kamau -Deceased) & 2 others (Enviromental and Land Originating Summons E025 of 2021 & Environment & Land Case E053 of 2021 (Consolidated)) [2024] KEELC 3293 (KLR)", Case Analysis (2024). ELC No. E025 of 2021 (OS), consolidated with Murang'a MCELC No. E053 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3293/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.