Andrew Kariuki Boro v David Kinuthia Kimani [2019] KEELC 162 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata in light of prior proceedings between the Plaintiff and Robert Boro Mbugua
The suit is not res judicata; the parties differ and the cause of action (limitation/adverse possession) differs from the earlier ownership dispute.
The court found that the previous suit dealt with entitlement and ownership of the suit property, whereas the instant suit concerns limitation and whether the Plaintiff acquired the land by adverse possession. Since the parties are not the same and the causes of action differ, there is no bar to jurisdiction.
Whether the Plaintiff acquired Kiambaa/Ruaka/1956 by adverse possession
No. The Plaintiff failed to discharge the burden of proving continuous, uninterrupted, adverse possession for the statutory 12-year period on a balance of probabilities.
Robert Boro asserted his rights from 2000 (Tribunal ruling) which stopped time from running; the Plaintiff's own judicial review proceedings and the stay orders operated as a stay preventing the owners from asserting their rights; the Defendant became registered owner on transfer in 2010, and for adverse possession purposes time would only run against him from registration. Possession was therefore interrupted and not adverse.
Legal principles established
#- Time under the Limitation of Actions Act ceases to run when the true owner takes legal proceedings or makes an effective entry into the land, and while competent court orders (such as a stay) bar the owner from asserting rights, the owner cannot assert those rights
- A claimant seeking title by adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption
- For res judicata, the causes of action must be the same; a suit based on limitation/adverse possession is not barred by a prior suit on ownership
Court orders
#- 1.Dismissal of the Originating Summons entirely
- 2.Costs of the suit to the Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over a claim for adverse possession (Limitation of Actions Act, Section 7 and Section 38)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Kariuki Boro v David Kinuthia Kimani [2019] KEELC 162 (KLR)", Case Analysis (2019). Originating Summons dated 8th April 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/162/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.