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ELCPartially AllowedEnvironment & Land Case E006 of 2022· [2024] KEELC 3902 (KLR)

Edward v Malia (Environment & Land Case E006 of 2022) [2024] KEELC 3902 (KLR)

Environment and Land Court
30 April 2024
ECE.C. Cherono
4,178 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff brought an Originating Summons dated 1st August 2022 under Section 38 of the Limitation of Actions Act and Order 37 rule 7 of the Civil Procedure Rules, seeking a declaration that he had acquired 8.5 acres out of Land Parcel No. BUNGOMA/TONGAREN/2689, registered in the defendant's name, by adverse possession, plus orders compelling subdivision and transfer. The plaintiff claimed to have purchased and occupied the land since 1987 under various sale agreements, some through one Peter Mbaya. The defendant denied completing the sale, asserting an unpaid balance of Kshs. 45,000/= and that the plaintiff's occupation was neither peaceful nor uninterrupted. Each party called one witness. The court identified the sole issue as whether the plaintiff had acquired title by adverse possession. Applying Mbira v Gachuhi, Maweu v Liu Ranching, Kimani Ruchire v Swift Rutherfords and Public Trustee v Wanduru, the court held that the plaintiff entered with the vendor's permission as a bona fide purchaser, and that time began running when the last instalment was paid on 28th May 1988, after which occupation became adverse for over 29 years. However, the claim for the extra ½ acre failed because the supporting agreement (PExhibit 7) was mutilated, unsigned and non-compliant with Section 3 of the Law of Contracts Act. The suit therefore partially succeeded: the plaintiff was declared entitled to be registered as proprietor of 8 acres, the defendant was ordered to subdivide and transfer, with the Deputy Registrar empowered to sign transfer documents in default, and the defendant was condemned to pay the costs of the suit.

Key legal issues

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01

Whether the plaintiff has acquired title by adverse possession

Holding

Yes, as regards 8 acres. Entry was permissive as a purchaser, the licence was terminated on payment of the last instalment on 28th May 1988, and occupation thereafter was adverse for over 29 years

Reasoning

The court found the plaintiff took occupation in 1987 as a bona fide purchaser for value, so entry was permissive. Applying Public Trustee v Wanduru, time began running when the last instalment was paid on 28th May 1988, terminating the licence. Possession was open, peaceful and uninterrupted thereafter, exceeding the 12-year statutory period as to 8 acres. The claim for the extra ½ acre failed for want of proof.

p. 7
02

Whether the plaintiff proved occupation of the ½ acre claimed under the agreement dated 23rd January 2002

Holding

No; the agreement was unsigned, mutilated and incomplete under Section 3 of the Law of Contracts Act

Reasoning

PExhibit 7, the alleged agreement for the extra ½ acre, was found to be mutilated and incomprehensible, and the parties had not signed it, making it incomplete and non-compliant with Section 3 of the Law of Contracts Act. The defendant's rebuttal that the plaintiff occupies only 8 acres was unchallenged and no other evidence supported the claim.

p. 7

Legal principles established

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  • A purchaser in possession after payment of the purchase price is a person in whose favour the limitation period for adverse possession can run, calculated from the date of payment of the last instalment

Court orders

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  1. 1.The plaintiff is entitled to be registered as owner/proprietor of 8 Acres of land out of Land Parcel No BUNGOMA/TONGAREN/2689 by operation of law under the doctrine of adverse possession
  2. 2.The defendant is ordered to subdivide and transfer 8 Acres of land out of Land Parcel No BUNGOMA/TONGAREN/2689 in the name of the plaintiff
  3. 3.In default, the Deputy Registrar to dispense with production of the original title deed and statutory documents and to sign transfer documents enabling transfer of 8 Acres to the plaintiff
  4. 4.The defendant shall bear the costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure RulesOrder 37 rule 7
  • Civil Procedure ActSection 27
  • Law of Contracts ActSection 3

Cases cited (10)

  • Public Trustee vs. Wanduru Ndegwa
    (1984) eKLR Nairobi Appeal No. 73 of 1982; (1984) KLR 314
  • Joseph Gachumi Kiritu vs. Lawrence Munyambu Kabura
    (1996) eKLR
  • Hosea vs. Njiru & Others
    (1974) EA 526
  • Mbira –v- Gachuhi
    (2002) IEALR 137
  • Maweu vs. Liu Ranching and Farming Cooperative Society
    1985 KLR 430
  • Francis Gicharu Kariri – v- Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire –v– Swift Rutherfords & Co. Ltd
    (1980) KLR 10
  • Gabriel Mbui Vs Mukindia Maranya
    [1993] eKLR
  • Mwinyi Hamis Ali – v- Attorney General and Philemon Mwaisaka Wanaka
    Civil Appeal No. 125 of 1997
  • Wambugu – v- Njuguna
    (1983) KLR 172
Jurisdiction invoked
Section 38 of the Limitation of Actions Act Cap 22 and Order 37 rule 7 of the Civil Procedure Rules

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, "Edward v Malia (Environment & Land Case E006 of 2022) [2024] KEELC 3902 (KLR)", Case Analysis (2024). Environment & Land Case E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3902/eng@2024-04-30

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