Mburu v Gacheru & 3 others (Land Case 98 of 2023) [2024] KEELC 5714 (KLR)
The bottom line
#A Kenyan landowner lost her family land because she sued more than 12 years after the right to recover it had expired, and the occupants won title through adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's claim for recovery of land is time-barred under Section 7 of the Limitation of Actions Act
The claim was time-barred. The right of recovery first accrued to the late Mburu upon registration as proprietor on 12.07.1991; the 12-year limitation period expired on or about 11.07.2003 during his lifetime, so any action by the Plaintiff in the succession cause was already statute-barred.
The land register showed Mburu was registered as proprietor on 12.07.1991 while the Defendants had already entered in 1990. Section 7 bars actions to recover land after twelve years from when the right of action accrued. Mburu had twelve years from registration to sue and did not. The court held that devolution of the property through the succession cause did not interrupt or restart the running of time, so the Plaintiff's action, filed in 2022, was hopelessly out of time.
Whether the 1st Defendant proved adverse possession of the suit property
The counterclaim for adverse possession was proved on a balance of probabilities. The Defendants occupied openly, continuously and exclusively from 1990, and time ran from the last instalment of the purchase price in July 1993 to July 2005, exceeding twelve years.
Applying Kasuve v Mwaani Investments and Chevron v Harrison Charo Wa Shutu, the court found the elements of adverse possession established: open, exclusive possession as of right without interruption for over twelve years, shown by construction of houses and fences, felling trees, rearing livestock and enjoyment of natural resources. The late Mburu never made an effective entry or filed proceedings to evict them, and by his death in 2006 he had already lost the right of recovery.
Who shall bear the costs of the suit and counterclaim
Costs follow the event; the Defendants were awarded costs of the suit and the 1st Defendant costs of the counterclaim.
Relying on Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, the court found no good reason to depart from the general rule under the proviso to Section 27 of the Civil Procedure Act that a successful party should ordinarily be awarded costs.
Legal principles established
#- A change of ownership in a succession cause does not affect the running of time under the Limitation of Actions Act.
- Where a purchaser is in possession pending transfer, time for adverse possession runs from the date of the last payment of the purchase price.
- Costs follow the event in accordance with Section 27 of the Civil Procedure Act.
Court orders
#- 1.The Plaintiff's suit against the Defendants be and is hereby dismissed in its entirety.
- 2.A declaration that the Plaintiff's right to recover Title No. Nyandarua/Turasha/444 has become extinguished under Section 7 of the Limitation of Actions Act (Cap.22).
- 3.The 1st Defendant, Grace Njoki Gacheru, has become entitled to be registered as proprietor of Title No. Nyandarua/Turasha/444 on behalf of the estate of Mwangi Macharia alias Ayub Kimani Mwangi on account of the doctrine of adverse possession.
- 4.The Deputy Registrar of the court shall sign all necessary forms, documents and instruments on behalf of the Plaintiff to facilitate the transfer of the suit property to the 1st Defendant.
- 5.The Land Registrar – Nyandarua County shall cause the 1st Defendant to be registered as proprietor of the suit property and shall for that purpose dispense with the production of all documents in the possession, custody or control of the Plaintiff.
- 6.The Defendants are awarded costs of the suit whereas the 1st Defendant is awarded costs of the counterclaim as well.
- Jurisdiction invoked
- Original jurisdiction over land claims and counterclaims under Article 162(2)(b) of the Constitution and the Environment and Land Court Act; issues framed under Order 15 rule 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mburu v Gacheru & 3 others (Land Case 98 of 2023) [2024] KEELC 5714 (KLR)", Case Analysis (2024). Land Case 98 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5714/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.