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ELCPartially AllowedMRG ELC NO E014 OF 2021· [2024] KEELC 5106 (KLR)

Kihara & 2 others v Njihia & 4 others (Environment & Land Case E014 of 2021) [2024] KEELC 5106 (KLR)

Environment and Land Court
4 July 2024
8,789 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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The Environment and Land Court in Murang'a upheld registered landowners' titles, ordering their cousins off family land and awarding each Ksh 500,000 for trespass.

What this practically means

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Executive summary

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The three Plaintiffs, registered proprietors of parcels Loc 2/Makomboki/1876, 1877, 1881, 1882 and 1883 (subdivisions of the grandfather Mubea Wairiuko's parcel Loc 2/Makomboki/116), sued the Defendants, their cousins, for eviction, a permanent injunction and mesne profits. Their titles issued on 4th November 2015 pursuant to confirmed grants in Nairobi Succession Cause 243 of 1999 and Nakuru Succession Causes 500 and 501 of 2010, which grants were never revoked despite the Defendants' applications. The Defendants contended the suit was sub judice before the pending succession cause, that the court lacked jurisdiction, that the transfers were fraudulent, and that they had acquired the land by adverse possession through lifelong occupation. The court found the suit was not sub judice because the succession cause concluded in 2000 and the confirmed grant stands; it had jurisdiction as the dominant dispute was a land ownership claim, not succession. Fraud was neither specifically pleaded with particulars nor proved, so the Plaintiffs' titles were indefeasible under Sections 24 and 25 of the Land Registration Act. The adverse possession claim failed because it was not pleaded, submissions are not pleadings, and a claim by inheritance is mutually inconsistent with adverse possession. Prayers (a) and (b) of the plaint were allowed; mesne profits were not specifically proved, but each Plaintiff received general damages of Ksh 500,000/= for trespass. The Defendants were given 120 days to give vacant possession, their counter claim and preliminary objection were dismissed, and the Plaintiffs were awarded costs and interest at court's rate.

Key legal issues

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01

Whether the suit is sub judice

Holding

The suit is not sub judice; Succession Cause No 243 of 1999 was concluded in 2000 and the confirmed grant has not been set aside

Reasoning

The succession cause was concluded with a confirmed grant in 2000; the Defendants' revocation applications were unsuccessful and the grant remains in force. The Plaintiffs' claim is over ownership and possession of titled parcels, a different matter from the succession distribution. No active case involving the same parties and subject matter was shown to be pending.

p. 12
02

Whether the court has jurisdiction

Holding

The court has jurisdiction as the dominant issue is a claim over land, not succession, under Section 13(1) & 2(a) of the Environment and Land Court Act

Reasoning

Though the titles originate from succession proceedings, the Plaintiffs' claim is one of ownership and possession of land. The Environment and Land Court has original jurisdiction under Article 162(2)(b) over disputes relating to title, tenure and boundaries. The preliminary objection on jurisdiction was therefore dismissed.

p. 13
03

Whether registration of the Plaintiffs was procured by fraud

Holding

No; the Defendants did not specifically plead or prove fraud and the titles issued pursuant to court orders

Reasoning

Fraud must be specifically pleaded with particulars and strictly proved. The Defendants pleaded fraud generally without particulars and adduced no evidence of it. The Plaintiffs' registration flowed from court orders in succession causes whose confirmed grants have never been revoked, making them absolute and indefeasible owners under Sections 24 and 25 of the Land Registration Act.

04

Whether Defendants are entitled to the land by adverse possession

Holding

No; their claim was not pleaded, and a claim of ownership through inheritance is inconsistent with adverse possession

Reasoning

Adverse possession was not pleaded in the defence and cannot be raised via submissions. The Defendants claim inheritance from their grandfather's estate and have litigated over it, so their possession was not peaceful. Possession under a claim of right as heirs negates the hostility required for adverse possession.

p. 16
05

Whether Plaintiffs are entitled to the orders sought

Holding

Yes; entitled to vacant possession and permanent injunction, plus general damages for trespass of Ksh 500,000/= each

Reasoning

As registered proprietors with titles traceable to unrevoked court orders, the Plaintiffs are entitled to possession and enjoyment of their land under Section 24 of the Land Registration Act. The Defendants' occupation amounts to trespass, which is actionable per se, justifying general damages without proof of specific loss.

p. 15

Legal principles established

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  • A claim for adverse possession attaches to the land and not the title, and may be brought by a person in long occupation in their individual capacity
  • A plea of title by inheritance and a claim of adverse possession are mutually inconsistent and exclusive
  • Fraud must be specifically pleaded and distinctly proved; it cannot be left to be inferred from facts
  • A claim for adverse possession cannot be advanced through written submissions where it was not pleaded

Court orders

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  1. 1.Prayers (a) and (b) of the Plaint dated 25th May 2021 allowed - eviction and permanent/perpetual injunction
  2. 2.Each Plaintiff awarded general damages of Ksh 500,000/= plus interests at court's rate
  3. 3.Defendants directed to move out of the suit land/properties and give vacant possession to the Plaintiffs within 120 days from the date of judgment
  4. 4.In default, Plaintiffs to issue the usual notice as provided by law
  5. 5.Plaintiffs awarded costs of the suit and interests thereon at court's rate
  6. 6.Defendants' Counter claim and Preliminary Objection dismissed entirely with costs to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure Actsection 27
  • Civil Procedure RulesOrder 2 rules 4 and 10; Order 2
  • Environment and Land Court ActSection 13(1) & 2(a)
  • Land Registration Actsections 24, 25, 26(1)(a) & (b), 28
  • Evidence Actsections 61, 107
  • Constitution of KenyaArticle 162(2)(b)
  • Law of Succession Actsections 55, 82(b)(2)

Cases cited (16)

  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    (2000) eKLR
  • Kuria Kiarie & 2 others vs Sammy Magera
    (2018) eKLR
  • Richard Wefwafwa Songoi vs Ben Munyifwa Songoi
    (2020) eKLR
  • Catherine Koriko & 3 others vs Evaline Rosa
    [2020] eKLR
  • Daniel Kipkemboi Bett & Another vs Joseph Rono
    (2022) eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    [2020] eKLR
  • Owners of Motor Vessel "Lilian S" versus Caltex Oil (Kenya) Limited
    (1989) 1 KLR
  • Koinange & 13 others vs Charles Karuga Koinange
    1986 KLR at page 23
  • Duncan Nderitu Ndegwa vs Kenya Pipeline Co & Another
    (2013) eKLR
  • Hannington Oloo Ogumbe vs Albert Makau Kyambo & Another
    (2021) eKLR
  • re Estate of Isaac Kaburu Marete (deceased)
    2017 eKLR
  • Samuel Kihamba vs Mary Mbaisi
    (2015) EKLR
  • Racheal Mukami Ngugi vs Mercy Wanjiru Thogo
    (2018) eKLR
  • Mwangi & Another vs Mwangi
    (1986) KLR 128
  • Mohan Lal v Mirza Abdul Gafiar
    1996, 1 SCC 639
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 13(1) & 2(a) of the Environment and Land Court Act

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, "Kihara & 2 others v Njihia & 4 others (Environment & Land Case E014 of 2021) [2024] KEELC 5106 (KLR)", Case Analysis (2024). MRG ELC NO E014 OF 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5106/eng@2024-07-04

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