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ELCDismissedNot stated in the judgment

Njoroge & 3 others v Mukiri (Environment and Land Appeal E053 of 2023) [2024] KEELC 5651 (KLR)

Environment and Land Court
30 July 2024
3,905 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 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 Environment and Land Court at Thika (J G Kemei, Judge) dismissed an appeal against a magistrates' court judgment of 23 May 2023 which had dismissed the Appellants' (the Respondent's sons and grandson) claims to the suit land KARAI/GIKAMBURA/T.531 and ordered their eviction. The Appellants claimed title by adverse possession after over 50 years of occupation, customary trust over family land, and pleaded res judicata arising from the Respondent's earlier suit PMCC No 302 of 2011. The Court, as a first appellate court, re-evaluated the whole evidence under Section 78 of the Civil Procedure Act and the Selle principles. It held that the Appellants' occupation from the 1980s was permissive; consent was withdrawn only in 2011 when the Respondent demanded vacatur and they lodged a caution, so the period to 2019 fell short of the 12 years required under Section 7 of the Limitation of Actions Act; police reports of assault and threats showed the possession was not peaceful. On customary trust, applying Section 28(b) of the Land Registration Act and the Supreme Court's decision in Isack Kieba M'Inanga, the Court found no evidence that the purchased suit land was ancestral family land held in trust. The res judicata ground failed because the 2011 suit was dismissed for want of prosecution, not heard and finally decided. The Court affirmed the trial court's reliance on Sections 24 and 25 of the Land Registration Act, invoked Article 57 on the rights of older persons, held the Respondent had provided alternative lands (parcel 71 and Rumuruti), and dismissed the appeal with costs to the Respondent on 30 July 2024.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Appellants proved a claim of title under adverse possession
  2. 2.Whether the Appellants are entitled to title under customary trust
  3. 3.Whether the suit in the trial Court was res judicata
  4. 4.Whether in the overall the trial Court disregarded the defence of the Appellants in its judgment
  5. 5.Costs of the appeal

Key legal issues

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01

Whether the Appellants acquired title by adverse possession

Holding

No; their occupation was permissive until 2011 when consent was withdrawn, and the period to 2019 is under 12 years; occupation was also not peaceful

Reasoning

The Court found the Appellants and their mother remained on the land with the Respondent's permission from the 1980s. Permission was withdrawn in 2011 when the Respondent demanded vacatur and they lodged a caution. That interval to 2019 is under the 12 years required under Section 7 of the Limitation of Actions Act. Assault claims and threats evidenced by police reports further showed the possession was not peaceful, open and undisturbed.

p. 5
02

Whether the suit land is held under customary trust

Holding

No customary trust was proved; the burden rested on the Appellants and no evidence showed the land was ancestral family land

Reasoning

Relying on Section 28(b) of the Land Registration Act and the Supreme Court's elements in Isack M'Inanga Kieba, the Court held the claimant must show the land was family or clan land before registration and that the registered proprietor holds it for the family. The Respondent's unchallenged evidence was that he purchased the suit land, unlike parcel 71 which was inherited. No evidence supported the trust claim, so the trial court could not be faulted.

p. 6
03

Whether the trial suit was res judicata

Holding

No; PMCC No 302 of 2011 was dismissed for want of prosecution and thus not heard and finally decided

Reasoning

Section 7 of the Civil Procedure Act requires the former suit to have been heard and finally decided by a competent court. The Respondent explained that ill health prevented prosecution of the 2011 suit, which was dismissed for want of prosecution. A dismissal for want of prosecution is not a hearing and determination on the merits, so the doctrine of res judicata cannot be invoked.

p. 7
04

Whether the trial court disregarded the Appellants' defence

Holding

No; the appellate court found no grounds supporting that allegation after assessing the whole evidence

Reasoning

Having evaluated the entire record and the trial judgment, the Court found no basis for the claim that the defence was disregarded. It endorsed the trial court's finding that the registered owner enjoys the rights in Sections 24 and 25 of the Land Registration Act, and held that able-bodied sons and a grandson must look for their own properties; no law compels inter vivos transfer of land to children.

p. 7

Legal principles established

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  • Occupation of a registered proprietor's land with permission does not found adverse possession; time runs only from withdrawal of consent
  • Adverse possession requires peaceful, open occupation; violence and threats defeat the claim
  • Customary trust must be proved by the party asserting it; no law compels a parent to transfer land to children inter vivos
  • Res judicata only applies where the former suit was heard and finally decided; a dismissal for want of prosecution does not bar a subsequent suit

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court
Judgment delivered 23/5/2023 (trial court); earlier related suit PMCC No 302 of 2011
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's judgment (duty of first appellate court per Section 78 of the Civil Procedure Act)

Relief refused

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Setting aside of the trial court's judgment and allowance of the appeal

The Appellants did not prove adverse possession, customary trust or res judicata; the occupation was not peaceful and the earlier suit was dismissed for want of prosecution, not heard and determined

p. 8

Costs

Appeal dismissed with costs to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The time between 2011 to 2019 when the suit was filed cannot meet the threshold of 12 years required for one to acquire title by adverse possession.
p. 5Adverse possession – commencement of limitation period
A person claiming adverse possession must establish the following: on what date he came into possession; what was the nature of his possession; whether the fact of his possession was known to the other party; for how long his possession has continued and that the possession was open and undisturbed for the requisite 12 years.
p. 5Elements of adverse possession (as cited from Richard Wefwafwa Songoi)
The Court was not presented with any evidence to support customary trust and in the circumstances the Court finds that the trial Court cannot be faulted on this ground. Customary trust was not proven.
p. 6Customary trust not proved
In this case the previous suit was not heard and determined and therefore cannot be assaulted by the doctrine of resjudicata. This ground is dismissed.
p. 7Res judicata – dismissal for want of prosecution
In the end I find the appeal unmerited. It is dismissed with costs to the Respondent. Orders accordingly.
p. 8Final orders – dismissal of appeal with costs

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, "Njoroge & 3 others v Mukiri (Environment and Land Appeal E053 of 2023) [2024] KEELC 5651 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5651/eng@2024-07-30

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