Maria Goretti Muthoni Karuri (Legal Representative of Eustace Karuri Githenya) v Joreth Limited & 2 others [2020] KEELC 3401 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Whether the deceased was in actual, open and physical possession of the suit property sufficient to found adverse possession
No - the deceased never developed or lived on the land and did not have his own caretaker; possession was not open or physical
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.
Whether intermittent visits and partial cultivation constitute sufficient physical control for adverse possession
No - intermittent visits and cultivation along the river by PW1 did not amount to sufficient open physical control
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.
Legal principles established
#- 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
#- 1.Both questions in the originating sums answered in the negative; the claim for a declaration of title by adverse possession is dismissed
- 2.The estate of the late Eustace Karuri Githenya shall bear the costs of this suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs
The estate of the late Eustace Karuri Githenya shall bear the costs of this suit
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.
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.
The possession of the land by the trespasser must be actual, open, notorious, exclusive and continuous
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
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.
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.
Issues in the judgment
#The judgment refers to HCCC No 6206 of 1922 in one instance, clearly a typographical error for HCCC No 6206 of 1992
The judgment inconsistently states when the 2nd and 3rd defendants took possession; one witness states 20/12/2006 while another states 20/12/2009
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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.