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ELCAllowedOriginating Summons dated 16th March 1999· [2018] KEELC 162 (KLR)

Wilson Muthoka Mutunga v Tito Ndiku & another [2018] KEELC 162 (KLR)

Environment and Land Court
28 December 2018
1,904 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A man who occupied and ran a business on land for 17 years won ownership in Kenya's land court through adverse possession, despite not holding the title.

What this practically means

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Executive summary

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The Plaintiff, a businessman at Mtito Andei, filed an Originating Summons dated 16th March 1999 seeking a declaration that he had acquired leasehold title to LR No. 13216 by adverse possession and be registered as proprietor. He claimed he bought the land in 1976 from Tito Ndiku aka Daniel Ndiku, built premises and ran a butchery until stopped by an injunction obtained by the 1st Defendant, John Nthiwa Ndiku, on 8th March 1999. The Defendants denied the claim, with the 1st Defendant asserting he was the registered proprietor and that he never sent his father to sell the land. The Plaintiff produced a sale agreement dated 6th May 1976 and receipts for rates, while the Defendant produced his title deed. The court, applying Section 38(1) of the Limitation of Actions Act and Section 28(h) of the Land Registration Act, found that although the 2nd Defendant lacked legal capacity to sell, time for adverse possession began running in 1982 when the Plaintiff became aware of the grant in Tito Ndiku's name, and stopped on 8th March 1999 when the injunction issued - about 17 years, well beyond the statutory 12 years. The Plaintiff's occupation was continuous, hostile, open and notorious. The court granted prayers 1 and 2 of the Originating Summons, declaring the Plaintiff entitled by adverse possession, with costs to abide the result. Judgment was delivered at Makueni on 28th December 2018 by Mbogo C.G, J.

Key legal issues

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01

Whether the Plaintiff proved adverse possession of LR No. 13216

Holding

The Plaintiff proved adverse possession; he occupied the land openly, continuously and hostilely for about 17 years (1982-1999), exceeding the 12-year statutory period

Reasoning

The Plaintiff bought the land in 1976, built premises and ran a butchery from 1976 until he was stopped by an injunction on 8th March 1999. Time began running in 1982 when he became aware of the grant in the name of Tito Ndiku, and 12 years had elapsed by the time the Defendant moved against him in 1999. Nothing showed the Defendant took any step to stop the Plaintiff's occupation during that period.

p. 3
02

Whether the 2nd Defendant (deceased) had capacity to sell the suit land

Holding

The court observed that the 2nd Defendant did not have legal capacity to sell, but this did not defeat the adverse possession claim

Reasoning

The court noted that the 2nd Defendant lacked legal capacity to sell the registered land, since the grant was not in existence in 1976 and only came to the Plaintiff's attention in 1982. However, for adverse possession, time runs from the plaintiff's awareness of the true proprietor's title, so the lack of capacity did not bar the claim.

p. 3

Legal principles established

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  • A person seeking title by adverse possession must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use for the statutory period without interruption
  • Where a purchaser is in occupation after payment of the purchase price, his occupation becomes adverse to that of the vendor
  • For adverse possession, time begins to run when the plaintiff becomes aware of the registered proprietor's title

Court orders

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  1. 1.Declared that the Plaintiff acquired the leasehold title in LR No. 13216 by adverse possession (prayer 1 of the Originating Summons granted)
  2. 2.Costs of the suit to abide the result (prayer 2 granted)
Jurisdiction invoked
Original jurisdiction under Section 38(1) of the Limitation of Actions Act (Cap 22) for an order that the plaintiff be registered as proprietor by adverse possession

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, "Wilson Muthoka Mutunga v Tito Ndiku & another [2018] KEELC 162 (KLR)", Case Analysis (2018). Originating Summons dated 16th March 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/162/eng@2018-12-28

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