Muremera v Stephine & another (Enviromental and Land Originating Summons 1 of 2021) [2024] KEELC 6438 (KLR)
The bottom line
#A Meru court dismissed an adverse possession claim because it targeted the wrong party and the claimant had entered the land with the owner's permission.
What this practically means
#Executive summary
#Key legal issues
#Whether a claim for adverse possession may be maintained against a defendant who is not the registered proprietor of the suit land
No. Section 38(1) of the Limitation of Actions Act requires the claim to be brought against the person who is the registered owner of the land; the registered proprietor at filing was Nazarino Bundi Stephen, sued only in a representative capacity, so the summons was misconceived.
The court read Section 38(1) of the Limitation of Actions Act together with Order 37 Rule 7 of the Civil Procedure Rules and concluded that adverse possession relief can only issue against the currently registered proprietor. The current registered owner was sued only as administrator of the deceased's estate, not personally, and therefore was not amenable to the orders sought. Failure to comply with the mandatory provision rendered the suit bad in law.
Whether the plaintiff's entry and occupation of the suit land was adverse
No. The plaintiff entered under the 1997 exchange agreement with the deceased's permission; permissive occupation cannot ripen into adverse possession.
The plaintiff's own case predicated entry on an agreement of 5th June 1997 and a registered caution claiming purchaser's interest, showing permissive entry. Citing Gabriel Mbui v Mukindia Maranya, the court held that possession must be nec vi, nec clam, nec precario and non-permissive. Since the plaintiff was effectively seeking to enforce the exchange agreement, the essential prerequisites of adverse possession were not met.
Legal principles established
#- An order for relief by way of adverse possession can only be made against a respondent or defendant who is the currently registered proprietor of the land sought to be registered in the applicant's name.
- Occupation of land under a licence, permission or consent of the owner does not amount to adverse possession and confers no title under the limitation statute.
Court orders
#- 1.The plaintiff's suit is dismissed with costs
- Jurisdiction invoked
- Section 38(1) of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muremera v Stephine & another (Enviromental and Land Originating Summons 1 of 2021) [2024] KEELC 6438 (KLR)", Case Analysis (2024). Originating Summons dated 6th June 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6438/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.