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ELCDismissedMRG ELC CASE NO 1 OF 2022 (OS)· [2024] KEELC 5038 (KLR)

Njobe & another v Muri (Environment & Land Case E001 of 2022) [2024] KEELC 5038 (KLR)

Environment and Land Court
27 June 2024
LGL. Gacheru
2,377 words in judgment
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The bottom line

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The Environment and Land Court refused to review its dismissal of an adverse possession claim, confirming that proof of actual occupation is essential to win such cases in Kenya.

What this practically means

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Executive summary

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Theresia Muthoni Njobe, the 1st Plaintiff in an adverse possession claim over land parcel KAKUI/KIRIMIRI BLOCK 2/262, applied by Notice of Motion dated 13th October 2023 under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules for review of the court's judgment of 27th July 2023 dismissing the Originating Summons. She argued the court erred in finding that evidence of a Chief Magistrate's Court directive requiring her to vacate the property was missing, whereas the proceedings and Ruling of Thika CMCC No. 102 of 1991 dated 4th August 1998 appeared on pages 10-11 of her trial bundle. She further relied on subsequent contempt orders arising from that Thika case. The Respondent did not oppose the application. The court, per L. Gacheru J, applied the principles in Republic v Advocates Disciplinary Tribunal Ex-Parte Apollo Mboya and Fredrick Otieno Outa v Jared Odoyo Okello on review, and held that the dismissed judgment did not turn on whether a contempt order was issued; it turned on whether the plaintiffs proved actual occupation and that their occupation was adverse to the defendant, on which they had led no evidence. Even accepting the contempt evidence, it did not cure the failure to prove when possession was taken dispossessing the respondent. The review application was dismissed entirely with no orders as to costs, the application being undefended.

Key legal issues

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01

Whether the applicant was entitled to review of the judgment of 27th July 2023 on the ground of an error apparent on the face of the record

Holding

The application was not merited and was dismissed entirely

Reasoning

The court held that the disputed documentation on pages 10-11 of the trial bundle was irrelevant to the actual grounds of dismissal, namely failure to prove actual occupation and that occupation was adverse. Even accepting that a contempt order existed, it did not address the crucial issue of when possession was taken dispossessing the respondent. The alleged error was therefore not apparent on the face of the record.

p. 5

Legal principles established

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  • Review is available only on the grounds in Order 45 Rule 1 and an error apparent on the face of the record must be prima facie visible without detailed examination
  • Occupation of the land is essential to sustain a claim founded on adverse possession and sufficient evidence must be availed

Court orders

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  1. 1.The Notice of Motion dated 13th October 2023 seeking review of the judgment of 27th July 2023 is dismissed entirely
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Land ActSection 7

Cases cited (9)

  • Republic Vs Advocates Disciplinary Tribunal Ex-Parte Apollo Mboya
    [2019] eKLR
  • Fredrick Otieno Outa v Jared Odoyo Okello & 3 others
    [2017] eKLR
  • Mount Elgon Beach Properties Limited V Kalume Mwanongo Mwangaro & Another
    [2019] eKLR
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Mbira V Gachuhi
    [2002] 1 EALR 137
  • Samuel Kihamba V Mary Mbaisi
    Kisumu Civil Appeal No. 27 of 2013; [2015] eKLR
  • Maweu V Liu Ranching & Farming Cooperative Society
    [1985] eKLR
  • Gachuma Gacheru V Maina Kabuchwa
    [2016] eKLR
  • Peter Kamau Naju V Emmanuel Charo Tinga
    [2016] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review of the court's own judgment of 27th July 2023)

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, "Njobe & another v Muri (Environment & Land Case E001 of 2022) [2024] KEELC 5038 (KLR)", Case Analysis (2024). MRG ELC CASE NO 1 OF 2022 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5038/eng@2024-06-27

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