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ELCAllowedOriginating Summons dated 11.7.2023· [2024] KEELC 4589 (KLR)

East Africa Pentecostal Church through the Registered Trustees v Hezekiel (Enviromental and Land Originating Summons E001 of 2023) [2024] KEELC 4589 (KLR)

Environment and Land Court
5 June 2024
CNC K Nzili
847 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 took out an originating summons dated 11 July 2023 claiming 0.40 acres out of the defendant's LR No. Igoji/Kianjogu/904 by adverse possession. The plaintiff's four witnesses proved that the defendant sold the church 0.30 acres by agreement dated 1 January 2005 and a further 0.10 acres in 2011; the church took possession, erected a church house, pastor's quarters, kitchen and toilets, planted trees and connected electricity, but the defendant, despite completing payments, failed to transfer the land after obtaining letters of administration and title in November 2022. The defendant, who filed no replying affidavit but was allowed to testify, admitted the sale but disputed one agreement's signatures and alleged a balance of Kshs.12,000/=. Applying Section 38 of the Limitation of Actions Act and the settled principles in Mtana Lewa, Wambugu v Njuguna, Samuel Miki Waweru and Public Trustee v Wanduru, the court held that possession since 2005 was open, exclusive, continuous and without the defendant's permission, and that no effective entry or notice to evict was proved. The court declared the plaintiff owner of the portion in her possession, ordered the defendant to excise and transfer 0.40 acres within two months, failing which the Deputy Registrar to effect the transfer, and awarded costs to the plaintiff.

Key legal issues

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01

Whether adverse possession was established over the 0.40 acres

Holding

The plaintiff proved entry in 2005, exclusive possession and development inconsistent with the owner's title, satisfying the requirements of adverse possession.

Reasoning

The plaintiff's witnesses proved entry in 2005 on 0.30 acres and later 0.10 acres, followed by developments (church house, pastor's quarters, kitchen, toilets, trees, electricity) inconsistent with the owner's title. The defendant did not deny the exclusive possession and adduced no evidence of effective entry or notice to evict, so the 12-year period ran in the plaintiff's favour.

p. 2
02

Commencement of limitation under an aborted sale agreement

Holding

Time begins to run upon payment of the entire purchase price or termination of the licence, per Public Trustee v Wanduru and Michuki v Michuki.

Reasoning

The court applied the settled principle that where possession is founded on a sale agreement, possession is initially permissive; it becomes adverse only when the purchaser pays the full purchase price and the vendor fails to transfer. Here the defendant defaulted on transfer after payments were completed, triggering adverse possession.

p. 2

Legal principles established

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  • Adverse possession arises where a true owner fails to assert ownership against an intruder for 12 years
  • Possession must be open, exclusive, notorious, continuous, without force or stealth, and with the knowledge of the true owner
  • Adverse possession must be without the permission of the true owner
  • Under a sale agreement, time for adverse possession runs from payment of the entire purchase price

Court orders

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  1. 1.Declaration that the plaintiff is the owner of the portion under her possession
  2. 2.The defendant to excise 0.40 acres of his land and transfer the same within two months
  3. 3.In default, the Deputy Registrar of the court to effect the transfers
  4. 4.Costs to the plaintiff

Authorities

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Legislation

  • Limitation of Actions ActSection 38

Cases cited (7)

  • James Maina Kinga vs Gerald Kwendaka
    (2018) eKLR
  • Public Trustee vs Wanduru Ndegwa
    (1984) eKLR
  • Mtana Lewa vs Kahindi Ngala Mwagandi
    (2016) eKLR
  • Maweu vs Lin Ranching & Farming Society
    (1985) KLR 430
  • Wambugu vs Njuguna
    (1983) eKLR
  • Samuel Miki Waweru vs Jane Njeru Richu
    C.A No. 122 of 2001
  • Michuki vs Michuki
    (2014) eKLR
Jurisdiction invoked
Section 38 of the Limitation of Actions Act, Cap 22 (adverse possession claim by originating summons)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "East Africa Pentecostal Church through the Registered Trustees v Hezekiel (Enviromental and Land Originating Summons E001 of 2023) [2024] KEELC 4589 (KLR)", Case Analysis (2024). Originating Summons dated 11.7.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4589/eng@2024-06-05

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