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ELCDismissedNot stated in the judgment as provided (Originating Summons under Section 38 of the Limitation of Actions Act)

Maria Goretti Muthoni Karuri (Legal Representative of Eustace Karuri Githenya) v Joreth Limited & 2 others [2020] KEELC 3401 (KLR)

Environment and Land Court
25 February 2020
4,818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The court refused to transfer land to a family that rarely visited it, showing that occasional cultivation is not enough to claim ownership by long occupation.

What this practically means

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Executive summary

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This first-instance judgment of the Environment and Land Court at Nairobi, delivered by Eboso J on 25 February 2020, determined an originating summons brought under Section 38 of the Limitation of Actions Act by the late Eustace Karuri Githenya, later continued by his widow and personal representative, Maria Goretti Muthoni Karuri, claiming title to LR No 13330/51 (approx. 0.496 hectares) by adverse possession. The deceased alleged that in 1991 he purchased a share in Thome Farmers No 5 Limited, entered the suit property, planted crops and occupied it openly and without interruption for 17 years, until the 1st defendant, Joreth Limited, sold the property to the 2nd and 3rd defendants in 2006-2009. The 1st defendant denied the deceased's possession, asserting that the property remained part of its land, that Thome Farmers No 5 Limited's purchase contract had aborted, and that its 1992 suit (Nairobi HCCC No 6206 of 1992) against identifiable occupiers interrupted any limitation period - noting that the deceased was not a defendant in that suit. The 2nd and 3rd defendants maintained that they bought the property from the 1st defendant for Kshs 1,500,000 and took vacant possession in 2006. The court framed two questions: whether the deceased had acquired title by adverse possession, and whether the 2nd and 3rd defendants' registration should be cancelled. Relying on Mtana Lewa and Alfeen Mehdimohammed, the court held that adverse possession requires actual, open, notorious, exclusive and continuous possession manifest to a reasonable land owner. Finding that the deceased never developed or lived on the land, and that PW1 was a caretaker on a different, neighbouring plot, the court held that intermittent visits and partial cultivation did not constitute sufficient physical control. Both questions were answered in the negative and the suit was dismissed with costs to the estate of the deceased.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether Eustace Karuri Githenya (the deceased plaintiff) should be declared to have acquired title by adverse possession to the suit property, Land Reference No 13330/51, prior to his demise
  2. 2.Whether the registration of the 2nd and 3rd defendants as proprietors of the suit property should be cancelled and the name of the administrator of the Estate of Eustace Karuri Githenya entered in the register

Key legal issues

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01

Whether the deceased was in actual, open and physical possession of the suit property sufficient to found adverse possession

Holding

No - the deceased never developed or lived on the land and did not have his own caretaker; possession was not open or physical

Reasoning

The court found that between 1991 and 2009 the deceased never lived on the suit property, never developed it, and did not have his own caretaker. PW1 was a caretaker on a neighbouring plot belonging to Mr Nelson Wachira, four plots away. Share certificates and internal allotment documents from Thome Farmers No 5 Limited did not demonstrate open possession. Given the absence of development and actual physical possession, it could not be concluded that the deceased was in the open, actual and physical possession required by the doctrine.

p. 5
02

Whether intermittent visits and partial cultivation constitute sufficient physical control for adverse possession

Holding

No - intermittent visits and cultivation along the river by PW1 did not amount to sufficient open physical control

Reasoning

The court held that adverse possession requires a sufficient degree of physical control which is apparent and manifest to a reasonable land owner - one who can see that an intruder has taken exclusive possession. The deceased only made intermittent visits; the subsistence crops and napier grass along the river were grown by PW1. Such sporadic acts fell short of the exclusive, continuous and notorious possession required under Kweyu v Omutut.

p. 5

Legal principles established

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  • The possession required for adverse possession must be actual, open, notorious, exclusive and continuous, and must be apparent and manifest to a reasonable land owner
  • Intermittent visits and cultivation of part of land by a third party do not amount to sufficient open physical control to found adverse possession
  • Time under the doctrine of adverse possession stops running when the owner asserts his right by taking legal proceedings or making effective entry into the land

Court orders

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  1. 1.Both questions in the originating sums answered in the negative; the claim for a declaration of title by adverse possession is dismissed
  2. 2.The estate of the late Eustace Karuri Githenya shall bear the costs of this suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act (Section 38) and the Civil Procedure Rules (Order XXXVI), as invoked in the originating summons

Relief refused

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Declaration that the deceased acquired title by adverse possession to LR No 13330/51

The deceased was not in actual, open, notorious, exclusive and continuous physical possession of the suit property for the requisite 12-year period

p. 5

Cancellation of the registration of the 2nd and 3rd defendants as proprietors and substitution with the administrator of the deceased's estate

Since adverse possession was not proved, the basis for cancelling the registration fell away

p. 5

Costs

The estate of the late Eustace Karuri Githenya shall bear the costs of this suit

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is therefore my finding that the deceased did not acquire title to the suit property under the doctrine of adverse possession. My answers to the two questions in the originating summons are therefore in the negative. The estate of the late Eustace Karuri Githenya shall bear the costs of this suit.
p. 5Final orders - dismissal of adverse possession claim and costs
The possession of the land by the trespasser must be actual, open, notorious, exclusive and continuous
p. 5Essential elements of adverse possession
The possession must be apparent and manifest to a reasonable land owner; it must be one which a reasonable land owner can see and be able to tell that an intruder has invaded his land and has taken exclusive possession thereof
p. 5Objective character of adverse possession
The fact that the deceased had the share certificate and internal allotment documents from Thome Farmers No 5 Limited does not demonstrate open possession of the suit property.
p. 5Internal share documents insufficient proof of possession
time which has begun to run in favour of the adverse possessor will stop when the owner of the land asserts his right by taking legal proceedings or by making effective entry into the land.
p. 4Interruption of limitation period

Issues in the judgment

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minor

The judgment refers to HCCC No 6206 of 1922 in one instance, clearly a typographical error for HCCC No 6206 of 1992

minor

The judgment inconsistently states when the 2nd and 3rd defendants took possession; one witness states 20/12/2006 while another states 20/12/2009

minor

The registration dates of the transfer are stated inconsistently - lodged and registered on 12/6/2007 in one passage, and lodged on 12/6/2009 in another

minor

The originating summons is expressed to be brought under 'Order XXXVI, Section 3D of the Civil Procedure Rules (sic)', which does not exist in that form

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, "Maria Goretti Muthoni Karuri (Legal Representative of Eustace Karuri Githenya) v Joreth Limited & 2 others [2020] KEELC 3401 (KLR)", Case Analysis (2020). Not stated in the judgment as provided (Originating Summons under Section 38 of the Limitation of Actions Act). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3401/eng@2020-02-25

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