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ELCPartially AllowedLand Case 98 of 2023· [2024] KEELC 5714 (KLR)

Mburu v Gacheru & 3 others (Land Case 98 of 2023) [2024] KEELC 5714 (KLR)

Environment and Land Court
25 July 2024
2,924 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, registered proprietor of Nyandarua/Turasha/444 through succession proceedings in the estate of her late husband Charles Mburu Shadrack, sued the Defendants for declarations of possession, trespass, a permanent injunction, eviction and general damages, alleging they encroached in 1990. The Defendants, by a joint defence and counterclaim, pleaded that the late Mburu sold the suit property to the late husband of the 1st Defendant, Mwangi Macharia, under sale agreements made between 1989 and 1998; that the full purchase price was paid, a transfer form signed and Land Control Board consent obtained, but Mburu died before transfer. They pleaded occupation since 1990 and claimed title by adverse possession under the Limitation of Actions Act (Cap.22). Framing five issues under Order 15 rule 2 of the Civil Procedure Rules, the court held that the Plaintiff's right of recovery first accrued to Mburu upon his registration on 12.07.1991 and expired on or about 11.07.2003 during his lifetime; the change of ownership in the succession cause did not affect the running of time, so her suit was time-barred. On the counterclaim, applying Kasuve v Mwaani Investments and Chevron v Harrison Charo Wa Shutu, the court found open, continuous and exclusive occupation for over twelve years, with time running from the last instalment of the purchase price in July 1993 to July 2005. The Plaintiff's suit was dismissed in its entirety and the 1st Defendant's counterclaim allowed: her right to recover the land was declared extinguished, she was declared entitled to be registered as proprietor on behalf of the estate of the late Mwangi, and the Deputy Registrar and Land Registrar, Nyandarua County were directed to facilitate the transfer. Costs of both suit and counterclaim were awarded to the Defendants.

Key legal issues

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01

Whether the Plaintiff's claim for recovery of land is time-barred under Section 7 of the Limitation of Actions Act

Holding

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.

Reasoning

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.

p. 4
02

Whether the 1st Defendant proved adverse possession of the suit property

Holding

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.

Reasoning

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.

p. 6
03

Who shall bear the costs of the suit and counterclaim

Holding

Costs follow the event; the Defendants were awarded costs of the suit and the 1st Defendant costs of the counterclaim.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The Plaintiff's suit against the Defendants be and is hereby dismissed in its entirety.
  2. 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. 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. 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. 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. 6.The Defendants are awarded costs of the suit whereas the 1st Defendant is awarded costs of the counterclaim as well.

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 15 rule 2

Cases cited (5)

  • Kasuve v Mwaani Investments Ltd & 4 Others
    [2004] 1KLR 184
  • Wanja v Sakwa No.2
    [1984] KLR 284
  • Chevron (K) Limited v Harrison Charo Wa Shutu
    [2016] eKLR
  • Littledale v Liverpool College
    (1900) 1 Ch.19
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
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

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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, "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.