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ELCAllowedNot stated in the judgment· [2024] KEELC 4099 (KLR)

Kioga v M'birithia (Sued as the Administrator of the Estate of Mburugu M'nkanata alias Mburugu Kioga alias Kioga Mburugu Nkanata alias M.M Kioga alias Mburugu Kioga - Deceased) (Environment & Land Case E001 of 2023) [2024] KEELC 4099 (KLR)

Environment and Land Court
15 May 2024
3,301 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court declared a woman who occupied her brother's land for 18 years its owner through adverse possession, overriding a disputed will.

What this practically means

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Executive summary

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The plaintiff, sister of the late Mburugu M'Nkanata (M.M Kioga, an advocate), brought an originating summons dated 7 November 2023 seeking to be declared owner of L.R No. Nyaki/Mulathankari/355 by adverse possession. She testified she moved onto the land in 2000 with her family, farmed it and built permanent structures, and remained uninterrupted until the deceased's death in 2018. The land became registered in the defendant's name in 2022 through Meru Succession Case No. 14 of 2019; the defendant, the deceased's former law-firm assistant and administrator, contended the plaintiff was a mere licensee whose permission terminated under the deceased's will upon her children attaining majority, and raised a procedural objection under Order 37 Rule 7(2) of the Civil Procedure Rules. The court reviewed the case law on adverse possession among relatives, including Wambugu vs Njuguna, Eunice Karimi Kibunja, Samuel Kihamba and Mbui vs Maranya, and distilled that consent is a question of fact and that a relative on ancestral land is not automatically a licensee. The court discounted the will - undated, with uncountersigned overwriting and absent witnesses and co-executors - and found no evidence that the deceased ever terminated the alleged licence, asserted his rights, or re-entered. The notice to vacate came only in 2023, five years after death, unexplained. Holding that the plaintiff's nearly 18-year uninterrupted occupation was as of right and inconsistent with the owner's use, the court declared the plaintiff owner of the suit land, ordered the defendant to execute transfer forms and land control board consents within two months (with the Deputy Registrar empowered in default), and awarded costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff's occupation of the suit land was permissive (licence) or adverse

Holding

The court held the plaintiff was on the land as of right, not as a licensee; the alleged conditional permission was not proved and the alleged termination was never effected by the deceased.

Reasoning

The defendant relied solely on a will of doubtful provenance - undated, lacking witness particulars, with uncountersigned overwriting - and the executors and beneficiaries were not called. Between entry in 2000 and the deceased's death in 2018 there was no assertion of rights, effective entry or eviction. The notice to vacate came only in 2023, five years after death, and the delay was unexplained. The plaintiff's long, uninterrupted, exclusive occupation and development evidenced animus possidendi.

p. 5
02

Whether the ingredients of adverse possession were established

Holding

The court found the ingredients met: open, exclusive and uninterrupted possession for the requisite period with acts inconsistent with the owner's intended use of the land.

Reasoning

Applying Wambugu vs Njuguna, the enquiry is whether the title holder was dispossessed or discontinued possession for 12 years. The plaintiff occupied exclusively from 2000, farmed and built permanent homes, and produced photographs of family events on the land - acts inconsistent with the deceased's intended use. The defendant admitted the occupation and its duration on oath. No interruption was shown before or after the deceased's death.

p. 6
03

Whether the defendant's procedural objection under Order 37 Rule 7(2) defeated the originating summons

Holding

The court did not uphold the objection; it determined the claim on the merits.

Reasoning

The defendant argued that absence of a title extract from the supporting affidavit rendered the summons incompetent. The court framed only one issue - whether the plaintiff was on the land by adverse possession - and proceeded to decide it on the evidence, implying the objection did not prevail.

p. 3

Legal principles established

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  • Where permissive occupation is alleged to have been terminated, the owner must assert rights, gain effective entry or drive out the claimant; mere inaction after the alleged termination allows time to run in favour of the adverse possessor.
  • Adverse possession among relatives is a question of fact turning on whether consent was given, how long it endured, and whether the owner reclaimed the land.
  • Possession may be physical or constructive for purposes of adverse possession.

Court orders

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  1. 1.The plaintiff is declared the owner of L.R No. Nyaki/Mulathankari/355 by adverse possession
  2. 2.The defendant is ordered to sign the transfer forms and land control board consents in favour of the plaintiff within two months
  3. 3.In default, the Deputy Registrar of the court exercises those powers
  4. 4.Costs to the plaintiff
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act and Civil Procedure Rules (Order 37) in a claim for adverse possession; exact provision not stated

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, "Kioga v M'birithia (Sued as the Administrator of the Estate of Mburugu M'nkanata alias Mburugu Kioga alias Kioga Mburugu Nkanata alias M.M Kioga alias Mburugu Kioga - Deceased) (Environment & Land Case E001 of 2023) [2024] KEELC 4099 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4099/eng@2024-05-15

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