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ELCDismissedOriginating Summons dated 31.3.2014 (Nairobi)· [2024] KEELC 5285 (KLR)

Kamau (Administrator & Legal Representative of the Estate of Nduro Makau aka Nduku Makau - Deceased) v Parmar & another (As Administrators to the Estate of Nagindas Ramji - Deceased) (Enviromental and Land Originating Summons 468 of 2014) [2024] KEELC 5285 (KLR)

Environment and Land Court
11 July 2024
6,439 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a family's claim to three acres because contradictory witness evidence failed to prove exclusive, uninterrupted occupation for twelve years.

What this practically means

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Executive summary

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The plaintiff, administering the estate of her late mother Nduro Makau, claimed 3 acres out of Parcel No. 42/6 Njiru by adverse possession, contending her mother had occupied the land since the 1940s/1950s until her death in 2005, and sought its transfer plus costs. The defendants countered that Nduro Makau entered the land as the wife of their father's employee, Peter Otieno Orimba, left upon his retirement in 1993, and was later permitted to return in 1999 under licence, with her son executing agreements in 2008/2009 relinquishing any claim. The defendants raised two preliminary points: defective commissioning of annexures contrary to the Oaths and Statutory Declaration Act, and the plaintiff's limited grant ad litem. The court rejected both objections, holding the annexures had been tested through viva voce evidence and that any success would vest the land in the estate, not the plaintiff personally. On the substance, the court identified the elements of adverse possession - actual entry for 12 years, claim of right, non-permissive occupation, animus possidendi and occupation inconsistent with the owner's enjoyment. It found the plaintiff's witnesses hopelessly contradictory on entry, dates and family relationships, with PW1 twice referring to her brother as 'Mboya', lending credence to the defence's licence narrative. Exclusive occupation of 3 acres was also not proved, no demarcation was shown, the defendants' factory operated on the land, and the area chief found the family occupying only about 30 by 150 feet. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether annexures to the Originating Summons not commissioned per the Oaths and Statutory Declaration Act warranted dismissal

Holding

Objection failed; documents were tested through viva voce evidence and cross-examination

Reasoning

The court distinguished the authority relied upon by the defence because the matter proceeded by full hearing in which the annexures were subjected to cross-examination like any other document, so there was no basis to expunge them or dismiss the suit.

p. 8
02

Whether the limited grant ad litem defeated the claim

Holding

Objection failed; the limited grant authorised filing the suit and any success would vest the land in the estate

Reasoning

The grant was for purposes of filing the suit, giving the plaintiff requisite authority. Since she sued as legal representative, the suit property would vest in the estate of Nduro Makau upon success, not in her personally, so the objection failed.

p. 8
03

Whether entry and continuous occupation by Nduro Makau was proved

Holding

Not proved; plaintiff's witnesses gave contradictory and unreliable accounts of entry and family history

Reasoning

Witnesses contradicted one another on when and how Nduro Makau entered the land, when Makau Kilonzi died, where witnesses were born and their relationships. PW1 twice referred to her brother as Mboya, undermining denials of the defence's licence narrative. The evidence of entry and continuous uninterrupted occupation was insufficiently established.

p. 10
04

Whether exclusive occupation and animus possidendi were established

Holding

Not established; the claimed 3 acres was never demarcated and occupation was shared with the defendants' factory

Reasoning

No evidence demonstrated how the three acres were demarcated on the ground. The plaintiff acknowledged the defendants' factory on the land, witnesses gave inconsistent accounts of fencing, the chief found the family occupying about 30 by 150 feet, so exclusivity over 3 acres and intention to exclude the owner were absent.

p. 11

Legal principles established

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  • A claimant in adverse possession must prove exclusive possession openly, as of right and without interruption for 12 years, either after dispossessing the owner or upon discontinuance by the owner
  • Occupation must be non-permissive and evidenced by unmistakable animus possidendi, inconsistent with the owner's enjoyment of the soil

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party is to bear their own costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsections 7 and 38
  • Oaths and Statutory Declaration Actnot specified

Cases cited (14)

  • Maweu v Liu Ranching & Farming Cooperative Society
    [1985] eKLR
  • Gachuma Gacheru v Maina Kabuchwa
    [2016] eKLR
  • Elijah Nderitu Gachaga v Francis Gakuu Gachaga & 2 others
    [2019] eKLR
  • Jeremiah Nyangwara Matoke v Independent Electoral and Boundaries Commission & 2 others
    [2017] eKLR
  • Haro Yonda Juaje v Sadaka Dzengo Mbauro & Kenya Commercial Bank
    [2014] eKLR
  • Njue v Matiabe & 3 others
    [Environment and Land Case E050 & E10 of 2021 (consolidated) [2023] KEELC 17361 (KLR)
  • Tius Kasuve v Mwaani Investments Ltd & 4 others
    [2004] eKLR
  • Mombasa Teachers Co-operative Savings Credit Society Limited v Robert Muhambi Katana & 15 others
    [2018] eKLR
  • Mwangangi Kisyula & another v Francis J Maingi Munyao
    [2012] eKLR
  • John Nyang'au Maragaia v Ogutu Mang'are Osoro
    [2021] eKLR
  • Hana Kenya Limited & another v Dhirey Mohanlan Shah
    [2018] eKLR
  • Mount Elgon-Beach Properties Limited v Kalume Mwanongo Mwangaro & another
    [2019] eKLR
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Samson S. Maitai & another v African Safari Club Limited & Another
    [2010] eKLR
Jurisdiction invoked
Original jurisdiction under section 38 of the Limitation of Actions Act to order registration of an adverse possessor as proprietor

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, "Kamau (Administrator & Legal Representative of the Estate of Nduro Makau aka Nduku Makau - Deceased) v Parmar & another (As Administrators to the Estate of Nagindas Ramji - Deceased) (Enviromental and Land Originating Summons 468 of 2014) [2024] KEELC 5285 (KLR)", Case Analysis (2024). Originating Summons dated 31.3.2014 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5285/eng@2024-07-11

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