Kirigia Kiarunyi v Doris Ciombaka Imathiu & 2 others [2017] KEELC 3087 (KLR)
The bottom line
#The Chuka Environment and Land Court dismissed a man's 14-year claim to own land by adverse possession because he had actually sold it decades earlier.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff has been in continuous, open, exclusive and undisturbed possession of the whole of L.R. No. Mitunguu/128 for over 12 years
- 2.Whether the period of adverse possession commenced in 1967 when Japhet Imathiu (deceased) was allegedly registered as the owner of the suit land
- 3.Whether on 31st January 1997 the plaintiff was in occupation of the whole land and whether he continued occupying it to date
- 4.Whether Japhet Imathiu is deceased and whether the defendants are his legal representatives
- 5.Whether the deceased's title is subject to the plaintiff's overriding interests under section 30(f) of the Registered Land Act (Cap 300)
- 6.Whether the plaintiff is entitled to be registered as proprietor of the suit land
Key legal issues
#Whether the defendant, as personal representative of the deceased registered owner sued six years after his death, was a proper respondent
The defendant was neither the registered owner nor the personal representative when the suit was filed in 2003; for this reason alone the suit would merit dismissal
The court adopted the reasoning in James Obande Wasui v Jeremiah Ochwanda Musumba that relief by adverse possession lies only against the currently registered proprietor. When suit was filed in 2003, Japhet Imathiu remained the registered owner and letters of administration to the defendant were only obtained on 6th January 2004.
Whether the plaintiff proved continuous, open, exclusive and undisturbed possession for over 12 years
He did not; his evidence and that of his witnesses was riddled with contradictions and was unreliable
PW1 gave conflicting testimony on when he moved onto the land and whether he lived there with his family; PW2's testimony was internally contradictory and of no evidential value; PW3 and PW4 contradicted the claim of occupation. Occupation effected only after exparte injunctive orders (later vacated) cannot count as adverse possession.
Whether the land was fraudulently registered in the name of Japhet Imathiu in 1967
No; the court found the plaintiff sold the land to the deceased and the registration was not illegal or irregular
The plaintiff adduced no documentary evidence of fraud, never reported the alleged fraud to police, and took no legal steps for 26 years. The court believed DW1 that the deceased bought the land for valuable consideration, fenced it and farmed it with his family and relatives.
Whether a vendor who sold land can reclaim it by adverse possession
Such conduct offends good public policy and amounts to unjust enrichment
The court held that a person who sells land for valuable consideration should not, years later, move back and claim ownership by adverse possession, particularly where he sued only six years after the registered owner (his stepbrother) died without ever raising a claim in the owner's lifetime.
Whether the plaintiff had overriding interests under section 30(f) of the Registered Land Act
He had none
Having failed to prove occupation and adverse possession, and having sold the land, the plaintiff could establish no overriding interest over the deceased's title.
Legal principles established
#- An order for relief by way of adverse possession can only be made against a respondent who is the currently registered proprietor of the land
- Length of occupation alone is not conclusive; the claimant must prove when time began to run and must prove the adverse possession itself
- A person who sold land for value cannot, contrary to public policy, later reclaim it by adverse possession
Court orders
#- 1.The suit is dismissed
- 2.Costs are awarded to Doris Ciombaka Imathiu, the defendant
- 3.The plaintiff, if still in occupation, is ordered to vacate the suit land within 6 months of the judgment, failing which the OCS in charge of the area is to assist in implementation of the order
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (Cap 22) read with Order 36 Rule 3(1) of the Civil Procedure Rules
Relief refused
#Declaration that the plaintiff is entitled to be registered as proprietor by adverse possession
Plaintiff failed to prove adverse possession; evidence contradictory and he had sold the land
Order directing the land registrar Meru to rectify the register
Follows from dismissal of the declaration
Costs
Costs are awarded to DORIS CIOMBAKA IMATHIU, the defendant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This suit is dismissed.
Costs are awarded to DORIS CIOMBAKA IMATHIU, the defendant.
The plaintiff, if he is still in occupation of the suit land, is ordered to vacate the suit land within 6 months of this Judgment and if he fails to do so, the OCS in charge of the area where the land is situated is ordered to assist in the implementation of this order.
an order for relief by way of adverse possession can only be made in favour of an applicant against a respondent if the said respondent is the currently registered proprietor of the land
I opine that good public policy would lean towards stopping such a person from reclaiming the land he had sold to another by way of adverse possession.
In this case he had come to court with dirty hands.
Issues in the judgment
#The judgment inconsistently cites the Wasui case as Busia High Court Civil Case Number 6 of 2000 in the defendant's submissions and as HCCC No. 6 OF 2009 in the list of authorities
The court's narrative dates Justice Makau's vacatur of the injunctive orders as 7th October 2010 in one passage and 8th October 2012 in another
Order (d) in the answers to the issues states the defendant himself sold the suit land to the plaintiff, reversing the parties as established elsewhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirigia Kiarunyi v Doris Ciombaka Imathiu & 2 others [2017] KEELC 3087 (KLR)", Case Analysis (2017). Originating Summons dated 10th July 2003 (Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3087/eng@2017-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.