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ELCDismissedMeru ELC (Originating Summons) - Originating Summons dated 6th August 1997, amended 27th April 2009· [2024] KEELC 3521 (KLR)

Nabea & another ((As Legal Representatives Of M’Emencu M’Akwalu – Deceased)) v Gikunda (Enviromental and Land Originating Summons 83 of 1997) [2024] KEELC 3521 (KLR)

Environment and Land Court
11 April 2024
CYC. K. Yano
2,283 words in judgment
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The bottom line

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The Environment and Land Court in Meru dismissed a 27-year-old adverse possession claim because the family claiming the land could not prove continuous, exclusive occupation for twelve years.

What this practically means

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Executive summary

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The plaintiffs, children of the late M'Emenchu M'Akwaru who was substituted after his death, brought an originating summons (dated 6th August 1997, amended 27th April 2009) seeking to be declared and registered proprietors of land parcel Kiegoi/Kinyanka/734 measuring 0.08 hectares by adverse possession. They asserted that the deceased, registered owner of the adjoining parcel Kiegoi/Kinyanka/985, had fenced and occupied the entire area since 1964 and that parcel 734, registered in the defendant's name on 10th March 1980 with title issued on 17th August 1984, had been clandestinely curved out of parcel 985. The defendant denied the claim, asserting he bought the land during demarcation, has occupied and cultivated it since 1973, and that the parties are mere neighbours with a shared boundary. C.K Yano J framed two issues: whether the plaintiffs acquired the suit land by adverse possession and whether they were entitled to the reliefs sought. Applying sections 7, 13 and 38(1) of the Limitation of Actions Act and the principles in Mtana Lewa v Kahindi Ngala Mwagandi and Wambugu v Njuguna, the court held that the claimant must prove peaceful, continuous, open and adverse occupation for over twelve years. The plaintiffs' own witness admitted the defendant had developed part of the suit land and could not specify the size of the portion the plaintiffs used. A court-ordered scene visit report filed on 23rd October 2009 contradicted the claim that the defendant's parcel lay inside parcel 985, showing instead that the parcels share a boundary. Finding material contradictions in the plaintiffs' pleadings and evidence, the court held the claim unproved on a balance of probabilities, dismissed the suit and awarded costs to the defendant.

Key legal issues

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01

Whether the plaintiff acquired land parcel Kiegoi/Kinyanka/734 (0.08 ha) by adverse possession

Holding

The claim failed; the plaintiff did not prove open, peaceful, continuous and adverse occupation for over twelve years, and the scene visit report contradicted the assertion that the suit land was inside the plaintiff's parcel

Reasoning

The court applied sections 7, 13 and 38(1) of the Limitation of Actions Act and the principles in Mtana Lewa and Wambugu v Njuguna. The plaintiff's own witness admitted the defendant had developed part of the suit land and could not state the size of the portion allegedly used by the plaintiffs. The court-ordered scene visit report showed the two parcels share a boundary and that the defendant's land was not inside the plaintiff's parcel, revealing contradictions in the plaintiff's pleadings and evidence insufficient to discharge the burden on a balance of probabilities.

p. 5
02

Whether the plaintiff was entitled to the reliefs sought

Holding

Not entitled; suit dismissed with costs to the defendant

Reasoning

Having failed to prove the claim of adverse possession to the required standard, the plaintiff could not sustain the reliefs sought in the originating summons, namely declaration of entitlement and registration as proprietor of the suit land.

p. 5

Legal principles established

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  • A claimant for adverse possession must prove peaceful, continuous and uninterrupted occupation of the claimed land for a period in excess of twelve years, and the possession must not be by force, stealth or under licence
  • Proof of adverse possession is assessed by whether the title holder has been dispossessed or has discontinued possession for the statutory period

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit are awarded to the defendant

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 7
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 13(1) and (2)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 38(1)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 37 (referenced within Section 38(1))

Cases cited (2)

  • Mtana Lewa v Kahindi Ngala Mwagandi
    (2005) eKLR
  • Wambugu v Njuguna
    (1983) KLR 173
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act, Cap 22 - application to the High Court (now Environment and Land Court) for an order that the applicant be registered as proprietor by adverse possession

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, "Nabea & another ((As Legal Representatives Of M’Emencu M’Akwalu – Deceased)) v Gikunda (Enviromental and Land Originating Summons 83 of 1997) [2024] KEELC 3521 (KLR)", Case Analysis (2024). Meru ELC (Originating Summons) - Originating Summons dated 6th August 1997, amended 27th April 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3521/eng@2024-04-11

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