Edward Mugambi & Jacob Kairanya M’Raibuni & Jason Mathiu Mwongera [2017] KEELC 3389 (KLR)
The bottom line
#A buyer who occupies land with the seller's permission cannot claim ownership after 12 years; the Kenyan court dismissed his claim and returned the land to the seller.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Is the said L.P No. Gakawa/Kahurura/Block 3/203 measuring 4.89 Ha?
- 2.Is the plaintiff in possession of the whole of it?
- 3.Has the plaintiff developed the whole of it?
- 4.Has the plaintiff obtained title to the suit land by limitation of actions and the doctrine of adverse possession?
- 5.How can the ownership be determined by the court?
- 6.Is the plaintiff entitled to costs of this suit?
Key legal issues
#Whether the 1st plaintiff had acquired title to the suit land by adverse possession
No; the 12-year period had not elapsed by the time the defendant filed his first suit on 23rd September 1992, whether time is counted from the collapse of the sale agreement (6th March 1986) or from entry (5th August 1981).
The Court of Appeal in Civil Appeal No. 286 of 2002 definitively found the plaintiff in fundamental breach and that limitation was rightly rejected in the 1992 suit. The sale agreement collapsed upon the third demand letter of 6th March 1986, so time could only run from then. Even counting from the date of entry in 1981, 12 years had not elapsed by 23rd September 1992. Possession was with the vendor's consent, so time did not run until the agreement was terminated.
Whether a purchaser in possession under a sale agreement with the vendor's consent can claim adverse possession
No; time does not run until the agreement is terminated, per the Supreme Court in Malcolm Bell v Daniel Arap Moi.
The court adopted the Supreme Court's holding that where a purchaser occupies land subject to a sale agreement with the vendor's consent, time for adverse possession starts running only upon termination of the agreement. The sale agreement here collapsed with the third demand letter of 6th March 1986, leaving insufficient time before the defendant's 1992 suit.
Whether the transfer of the suit land by the 1st plaintiff to himself and to Juliano Muthomi Ndege, while an inhibition was registered, was fraudulent
Yes; the transfer was fraudulent and was ordered reversed, with the land registrar directed to revert ownership to the defendant.
The 1st plaintiff admitted the land had been transferred to another person while an inhibition was registered against the land, claiming an unknown person had removed the inhibition. The court found the transfer fraudulent and ordered cancellation of the registration of Juliano Muthomi Ndege and reversion to the defendant.
Whether the suit was res judicata other suits between the parties
The court declined to determine the issue, holding it was not for consideration in this judgment, having been addressed in a prior ruling by Justice W. Ouko.
The plaintiff argued the issue had been settled in Bilha Kanyi case, but the court held that what was in issue was not whether the relief was properly pursued but whether adverse possession had accrued, and that res judicata had already been addressed in a prior ruling in Meru HCCA No. 39 of 1998.
Legal principles established
#- Adverse possession requires hostile possession under a claim or colour of title, actual, open, uninterrupted, notorious, exclusive and continuous for 12 years; mere length of stay is insufficient.
- Where a purchaser occupies land subject to a sale agreement with the consent of the vendor, time for adverse possession does not start running until the agreement is terminated.
Court orders
#- 1.This suit is dismissed.
- 2.It is declared that the transfer of the suit land by the 1st plaintiff to himself and to JULIANO MUTHOMI NDEGE was fraudulent and the land registrar in charge of the register for Land Parcel No. GAKAWA/KAHURURA/BLOCK 3/203 is ordered to cancel the name of JULIANO MUTHOMI NDEGE and revert ownership to JASON MATHIU MWONGERA, the defendant.
- 3.Costs are awarded to the defendant.
- 4.The 1st plaintiff and any other person laying claim on the suit land should vacate the suit land within 6 months of the date of delivery of the judgment failing which the OCS in charge of the area shall facilitate the apposite eviction.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over a claim for title to land by adverse possession (Originating Summons under the Limitation of Actions Act and the doctrine of adverse possession)
Relief refused
#Declaration that the plaintiff acquired absolute title to the suit land by adverse possession
The 12-year limitation period had not run before the defendant's first suit; possession was under a sale agreement with the vendor's consent, and the agreement was not shown to have collapsed more than 12 years before that suit.
Declaration that the plaintiff is entitled to be registered as proprietor in place of the defendant
Claim of adverse possession failed; the Court of Appeal had found fundamental breach and repudiation of the sale agreement.
Declaration that the defendant holds the suit land title in trust of the plaintiff
No title having accrued by adverse possession, no trust could arise.
Costs of the suit
Costs were awarded to the defendant, not the plaintiff.
Costs
Costs are awarded to 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.
1. This suit is dismissed.
It is declared that the transfer of the suit land by the 1st plaintiff to himself and to JULIANO MUTHOMI NDEGE was fraudulent and the land registrar in charge of the register for Land Parcel No. GAKAWA/KAHURURA/BLOCK 3/203 is ordered to cancel the name of JULIANO MUTHOMI NDEGE and revert ownership to JASON MATHIU MWONGERA, the defendant.
Costs are awarded to the defendant.
The 1st plaintiff and any other person laying claim on Land Parcel No. GAKAWA/KAHURURA/BLOCK 3/203 should vacate the suit land within 6 months of the date of delivery of this Judgment failing which the OCS in charge of the area where the suit land is situated shall facilitate the apposite eviction.
A priori, length of stay alone cannot entitle a claimant to acquisition of title by adverse possession.
where a purchaser occupies land which is subject to a sale agreement, but with the consent of the vendor, time does not start running for purposes of adverse possession, until the agreement is terminated
Time for adverse possession to accrue can only start running from the occurrence of the collapse of the agreement.
Issues in the judgment
#Internal inconsistency in parcel number: the Originating Summons and most of the judgment refer to Land Parcel No. GAKAWA/KAHURURA/BLOCK 3/203, but the court's answer to question 1 refers to parcel 3/2013.
The Court of Appeal quote in paragraph 43 speaks of 'the respondent's right of action', yet the defendant was the respondent in that appeal, creating ambiguity as to whose right of action is described.
Paragraph numbering is irregular - two paragraphs are numbered 29 - and the defendant's citation of Salim is recorded as 'Salim versus Bond' in one place and 'Salim versus Boyd' in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Mugambi & Jacob Kairanya M’Raibuni & Jason Mathiu Mwongera [2017] KEELC 3389 (KLR)", Case Analysis (2017). Originating Summons dated 19th June, 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3389/eng@2017-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.