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ELCDismissedOriginating Summons dated 21st June, 2022· [2024] KEELC 4424 (KLR)

Kasarani No. 4 Mathare Dancers ((Suing as Through Its Officials Ndungu Nduati, David Wang’ang’a)) v Seven Self Help Group (Through Its Officials Eliud Mbugua, Peter Muchiri and Moses Muchiri) & 7 others (Environment & Land Case 62 of 2019) [2024] KEELC 4424 (KLR)

Environment and Land Court
30 May 2024
AOA.O. Ombwayo
6,684 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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What this practically means

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Executive summary

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The Plaintiff, a self-help group registered in 1986, brought an Originating Summons dated 21st June 2022 seeking a declaration that it had acquired overriding rights over eight parcels of land at Gilgil/Kikopey by adverse possession under the Land Registration Act and Sections 37 and 38 of the Limitation of Actions Act, an injunction against dealings, an order directing the Land Registrar Naivasha to register it as proprietor, and costs. Its case was that members purchased land from GEMA Holdings, occupied it from about 1984, and were first challenged in 2019. The Defendants, registered proprietors of the respective parcels, denied the claim, asserting that the group's occupation was permissive, interrupted and not exclusive, and the 5th Defendant additionally challenged the group's capacity to sue. The court first held that although unincorporated societies cannot sue in their own names, David Wang'ang'a, confirmed as vice chairperson by Ministry of Labour records, had locus standi to institute the suit in a representative capacity. On the substantive claim, the court applied the requirement of exclusive, open, continuous, actual and non-permissive possession for twelve years, and the principle that possession enjoyed with the owner's permission or in pursuance of a sale cannot ripen into adverse possession. It found the group's occupation was permissive (with the 6th Defendant's permission pursuant to the purchase), that the elements of adverse possession were not proved, and that no evidence established when occupation began. Members had also been charged with trespass. The suit was dismissed with costs on 30th May 2024.

Key legal issues

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01

Whether the Plaintiff had locus standi to institute the suit

Holding

The court found that David Wang'ang'a was an official (vice chairperson) of the Plaintiff group as confirmed by the Ministry of Labour records, and therefore had the requisite locus standi to institute the suit.

Reasoning

Although societies registered under the Societies Act are not legal entities and can only sue through trustees or officials in a representative capacity, the court perused the letter dated 30th June 2021 from the Ministry of Labour and Social Protection confirming that Wang'ang'a was vice chairperson. The supporting affidavit was sworn by him in that capacity, so the point on capacity failed.

p. 9
02

Whether the Plaintiff's occupation constituted adverse possession

Holding

The Plaintiff failed to prove adverse possession: occupation was permissive (with the 6th Defendant's permission and under a purchase arrangement), and the elements of open and notorious, continuous, exclusive, actual and non-permissive possession were not demonstrated.

Reasoning

The court set out the five elements of adverse possession and found each unproved: no concrete evidence of construction and use, occasional activity with gaps, no exclusive use given constant conflicts, no demonstrated actual physical use, and critically the occupation was with the 6th Defendant's permission pursuant to the purchase. Possession could not run adversely while permission subsisted. The Plaintiff also failed to show when occupation began.

p. 11

Legal principles established

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  • Unincorporated societies registered under the Societies Act cannot sue in their own names; they may only sue through trustees or officials in a representative capacity.
  • Possession with the permission of the owner, or in pursuance of a sale agreement, cannot found a claim of adverse possession.
  • A claimant for adverse possession must prove exclusive, open possession as of right, without interruption, for 12 years.

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13(1), 13(2), 13(3), 37, 38
  • Land Registration ActGeneral (overriding rights)
  • Societies ActCap 108
  • Civil Procedure RulesOrder 1 rule 8
  • Evidence ActSections 107 and 109
  • Group Registration ActGeneral

Cases cited (7)

  • Eritrea Orthodox Church vs. Wariwax Generation Ltd.
    [2007] eKLR
  • Samuel Miki Waweru V Jane Njeru Richu
    Civil Appeal No. 122 of 2001; (2007) eKLR
  • Kipsiwo Community Self Help Group V Attorney General & 6 Others
    (2013) eKLR
  • Ruth Wangari Kanyagia V Josephine Muthoni Kinyanjui
    (2017) eKLR
  • Sisto Wambugu -vs- Kamu Njuguna
    (1983) eKLR; (1982-88) IKAR 217
  • Jandu -vs- Kilpa
    (1975) EA 225
  • Kasuve Vs Mwaani Investments Limited & 4 others
    1 KLR 184
Jurisdiction invoked
Original jurisdiction under Sections 37 and 38 of the Limitation of Actions Act and the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kasarani No. 4 Mathare Dancers ((Suing as Through Its Officials Ndungu Nduati, David Wang’ang’a)) v Seven Self Help Group (Through Its Officials Eliud Mbugua, Peter Muchiri and Moses Muchiri) & 7 others (Environment & Land Case 62 of 2019) [2024] KEELC 4424 (KLR)", Case Analysis (2024). Originating Summons dated 21st June, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4424/eng@2024-05-30

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