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ELCPartially AllowedELC Case (Nairobi) - as per pleadings, L.R No. 6845/106 suit; exact case number not stated· [2024] KEELC 5861 (KLR)

Inshwil Builders Engineering Company Limited v Mwihike Farmers Company Limited & 9 others (Environment & Land Case 1373 of 2014) [2024] KEELC 5861 (KLR)

Environment and Land Court
30 August 2024
6,640 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Nairobi court ruled that 1.8 acres occupied since 2001 now belongs to the occupants through adverse possession, leaving the buyer with only 6.6 acres.

What this practically means

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Executive summary

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The plaintiff, Inshwil Builders Engineering Company Limited, sued claiming ownership of 7.4 acres out of L.R No. 6845/106, Embakasi, purchased from the 10th Defendant (agent for Thome Wambo Women's Group) under an agreement dated 8th July 2003, and sought vacant possession, a permanent injunction, and damages for trespass against the 1st to 8th Defendants. The 1st to 8th Defendants counterclaimed, asserting that the 1st Defendant had purchased land from the 10th Defendant under an agreement of 21st December 2001, taken possession of 1.8 acres, subdivided it among its members (the 2nd to 8th Defendants), and acquired title by adverse possession. The court framed four issues: proof of the plaintiff's claim, entitlement to relief, the merit of the counterclaim, and costs. It found that the plaintiff paid the full price of Kshs 2,664,000 for 7.4 acres, but the 2003 transaction was subject to the 1st Defendant's prior beneficial interest of 1.8 acres, over which the 1st Defendant had taken possession under the earlier agreement. Only Kshs 300,000 (not Kshs 600,000) was proved paid by the 1st Defendant, but entry was permissive and possession continued openly for over 12 years, satisfying the ingredients of adverse possession under the Limitation of Actions Act. The court declared the plaintiff owner of only 6.6 acres, allowed the counterclaim by declaring adverse possession of the 1.8 acres, ordered cancellation of the plaintiff's registration over that portion and its registration in favour of the 1st to 8th Defendants, issued a permanent injunction against the plaintiff and the 10th Defendant, refused damages for trespass, and directed each party to bear own costs.

Key legal issues

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01

Whether the plaintiff proved entitlement to 7.4 acres

Holding

The plaintiff proved entitlement only to 6.6 acres, the suit property excluding the 1.8 acres occupied by the 1st to 8th Defendants

Reasoning

Although the plaintiff paid the full purchase price of Kshs 2,664,000 for 7.4 acres under the 8th July 2003 agreement, that transaction was subject to the 1st Defendant's existing beneficial interest of 1.8 acres from the mother title, over which the 1st Defendant had taken possession. The court held the 2003 agreement ought not to have included the 1.8 acres, so the plaintiff's title extended only to 6.6 acres.

p. 10
02

Whether the 1st to 8th Defendants acquired title by adverse possession to the 1.8 acres

Holding

Yes; the counterclaim was allowed and title by adverse possession declared

Reasoning

The 1st Defendant entered under the 21st December 2001 sale agreement, taking possession of 1.8 acres, which it subdivided and sold to the 2nd to 8th Defendants who developed the portion. Entry was initially permissive but the agreement was never completed, and possession continued openly and undisturbed for over 12 years before suit, extinguishing the proprietor's title under Sections 7, 13, 17 and 38 of the Limitation of Actions Act.

p. 12
03

Whether the plaintiff was entitled to damages for illegal trespass

Holding

No; the prayer was refused because the occupation originated from a sale agreement

Reasoning

The court found the 1st to 8th Defendants occupied the 1.8 acres pursuant to the sale agreement of 21st December 2001. Since their initial entry was with the seller's consent under that agreement, the occupation could not constitute illegal trespass warranting damages. The court also found the plaintiff only partially succeeded and each party was to bear own costs.

p. 10

Legal principles established

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  • The burden of proof in civil cases lies on the party who alleges, per Sections 107, 109 and 112 of the Evidence Act
  • Adverse possession under Section 7 of the Limitation of Actions Act extinguishes a proprietor's title after 12 years of open and undisturbed possession
  • Permissive entry under an uncompleted sale agreement can ripen into adverse possession where the purchaser remains in possession for over 12 years

Court orders

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  1. 1.A declaration that only 6.6 acres of the suit property belongs to the plaintiff
  2. 2.A declaration that the 1st to 8th Defendants have acquired title by adverse possession to the 1.8 acres portion of land occupied by themselves out of L.R No. 6845/106 – Embakasi Nairobi, and that they be registered and issued with certificate of title in respect of that portion
  3. 3.Cancellation of the registration of the plaintiff, Inshwil Builders Engineering Company Limited, as proprietor of the 1.8 acres, and registration of the 1st to 8th Defendants as proprietors of the 1.8 acre portion by the Chief Registrar of Titles
  4. 4.A permanent injunction restraining the plaintiff and the 10th Defendant from entering, occupying, assigning, charging and/or interfering with the 1st to 8th Defendants' occupation of the 1.8 acres
  5. 5.Each party to bear own costs of the suit and counterclaim

Authorities

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Legislation

  • Evidence ActSections 107, 109 and 112
  • Limitation of Actions ActSections 4(2), 7, 13, 17 and 38

Cases cited (10)

  • Mohamed Raiz Shoukat and Another -vs- Yasin Abubakar Argwings Kodhek and 3 Others
    Mombasa ELC Case no. 59 of 2015
  • Gami Properties Limited -vs- NSSF & 2 others
    (2018) eKLR
  • Ndathi -vs- Itumo & 20 Others
    (2002) eKLR
  • Patrick Magu Kimunyu -vs- Joreth Limited
    C.A No. 52 of 2012 (2015) eKLR
  • City Council of Nairobi -vs- Wilfred Kamau Githua /Githua advocates and Another
    (2016) eKLR
  • Dhanjal Investments Limited -vs- Shabaha Investements Limited
    Court of Appeal No. 80 of 2019 (2022) KECA 366 (KLR)
  • Bharminder Sing Osahan -vs- Helicopters International Limited
    (2021) eKLR
  • Richard Wefwafwa Songoi vs Ben Munyifwa Songoi
    [2020] eKLR
  • Mtana Lewa –v- Kahindi Ngala Mwangandi
    COA MALINDI (2015) eKLR
  • Paul Mwangi Gachuru vs. Kamande Nguku
    (2017) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land within Nairobi County

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, "Inshwil Builders Engineering Company Limited v Mwihike Farmers Company Limited & 9 others (Environment & Land Case 1373 of 2014) [2024] KEELC 5861 (KLR)", Case Analysis (2024). ELC Case (Nairobi) - as per pleadings, L.R No. 6845/106 suit; exact case number not stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5861/eng@2024-08-30

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