Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedOriginating Summons dated 6.10.2025

Kathuu v Kathiga (Sued as the administratrix of the Estate of the M’Tuerandu M’Ithiuru – Deceased) (Enviromental and Land Originating Summons E026 of 2025) [2026] KEELC 1867 (KLR)

Environment and Land Court
16 March 2026
5,962 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

A Kenyan land buyer who never finished paying for the property lost his adverse possession claim and must vacate within 90 days.

What this practically means

#

Executive summary

#
The plaintiff brought an originating summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act, seeking a declaration of adverse possession over 1 acre of parcel Abothuguchi/Gaitu/1143, registration as proprietor, and an order compelling the defendant to execute transfer instruments. His claim rested on a sale agreement dated 20.12.2010 with one Jeremiah Kahuria Randu, under which he took possession in March 2011, with a balance of Kshs 135,000 payable on transfer. The defendant, the recently appointed administrator of the estate of the registered owner M'Ituerandu M'Ithiuru (deceased), opposed the claim, contending that the vendor had no capacity, the sale was an illegal intermeddling with an unsucceeded estate contrary to Section 45 of the Law of Succession Act, and that the ingredients of adverse possession were not established. The court framed two issues: whether adverse possession was proved, and what relief should issue. It held that where a claim is founded on a sale agreement, time runs only from payment of the last instalment or repudiation of the contract; since the balance was never paid and no repudiation was proved, the occupation was not adverse. It further held the sale was vitiated by illegality and the plaintiff could not benefit from it, applying ex turpi causa non oritur actio. Although no counterclaim was filed, the court, invoking Section 13(7) of the Environment and Land Court Act and its inherent jurisdiction, ordered eviction. The suit was dismissed with costs to the defendant, and the plaintiff was given 90 days to vacate, failing which an eviction order would issue.

Questions the Court framed

#

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

  1. 1.Whether the plaintiff has established the requisite elements underpinning a claim for adverse possession or otherwise
  2. 2.What relief (if any) ought to issue

Key legal issues

#
01

Whether the plaintiff established the ingredients of adverse possession

Holding

The plaintiff failed to prove adverse possession; his occupation never became hostile because the final instalment of the purchase price was never paid and no repudiation of the contract was demonstrated

Reasoning

A purchaser in occupation under a sale agreement can only claim adverse possession from the date of payment of the last instalment or repudiation of the contract. The sale agreement showed the balance of Kshs 135,000 was payable on transfer; no transfer occurred, so the balance remained outstanding. The occupation was therefore permissive under the contract, and time under Section 7 of the Limitation of Actions Act never commenced running.

p. 7
02

Whether the sale agreement with a non-administrator of the deceased's estate can anchor a claim

Holding

The sale agreement was vitiated by illegality as intermeddling under Section 45 of the Law of Succession Act, and the plaintiff cannot benefit from it

Reasoning

The suit property belonged to the deceased M'Ituerandu M'Ithiuru, whose estate had not been succeeded when the 2010 sale agreement was executed. The vendor, Jeremiah Kahuria Randu, lacked capacity to sell. The transaction constituted intermeddling, prohibited and criminalised by Section 45, and a court cannot lend its aid to enforce obligations arising out of an illegal transaction.

p. 7
03

Whether the plaintiff should be evicted notwithstanding the absence of a counterclaim

Holding

Yes; the court, invoking Section 13(7) of the Environment and Land Court Act and its inherent jurisdiction, ordered the plaintiff to vacate within 90 days

Reasoning

Although the defendant filed no counterclaim, the court held that the failure to counterclaim does not sanitise the illegality. Ex turpi causa non oritur actio; a court must avert illegality once brought to its attention. The court found jurisdiction under Section 13(7) of the Environment and Land Court Act and its inherent/residual powers to act in the interest of justice.

p. 10

Legal principles established

#
  • Where a claim for adverse possession is predicated on a sale/purchase agreement, time only starts running once the last instalment of the purchase price is paid or the contract is repudiated; a purchaser who has not completed payment remains in occupation under the contract, not adversely
  • A sale of a deceased person's property before grant of letters of administration is illegal and amounts to intermeddling; a purchaser under such a contract cannot benefit from adverse possession, and a court will not enforce an illegal transaction

Court orders

#
  1. 1.The Plaintiff's suit be and is hereby dismissed
  2. 2.Costs of the suit be and are hereby awarded to the Defendant
  3. 3.The costs shall be agreed upon and in default be taxed in the conventional manner
  4. 4.The Plaintiff be and is hereby ordered to vacate and hand over vacant possession of the suit property to the Defendant within 90 days from the date hereof
  5. 5.In the event of default, the defendant shall be at liberty to evict the plaintiff either by himself, agents or servants; an eviction order shall issue

The bench

#

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

majority

Wrote the judgment

Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 38 of the Limitation of Actions Act; Section 13(7) of the Environment and Land Court Act, 2011

Relief refused

#

Declaration that the plaintiff has become entitled by adverse possession to 1 acre of Abothuguchi/Gaitu/1143

The plaintiff failed to demonstrate that his occupation was adverse/hostile, as the last instalment of the purchase price was never paid and no repudiation of the contract was proved

p. 9

Order that the plaintiff be registered as sole proprietor of 1 acre of the suit property and that the parcel be curved out

Follows from failure of the adverse possession claim

Order that the defendant execute transfer instruments

The claim was founded on an illegal contract amounting to intermeddling with the estate of a deceased person, which the court cannot enforce

p. 10

Costs

Costs of the suit awarded to the Defendant, to be agreed and in default taxed in the conventional manner

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.

Where the purchaser, who is in occupation on the basis of the sale/purchase agreement, has not concluded the payment of the purchase price, such a purchaser cannot invoke the doctrine of adverse possession.
p. 7adverse possession - purchaser in occupation
the plaintifi cannot benefit from illegal and criminal acts which are prohibited by the provisions of Section 45 of the Laws of Succession Act.
p. 9intermeddling - illegality
Ex turpi causa non oritur actio. This old and well-known legal maxim is founded in good sense, and expresses a clear and well recognized legal principle, which is not confined to indictable ofiences.
p. 10illegality - ex turpi causa
i. The Plaintifi’s suit be and is hereby dismissed. ii. Costs of the suit be and are hereby awarded to the Defendant.
p. 11disposition
iv. Additionally, and taking into account the provisions of Section 13 [7] of the Environment and Land Act,2011 ; the Plaintifi be and is hereby ordered to vacate and hand over vacant possession of the suit property to the Defendant within 90 days from the date hereof.
p. 11final orders - eviction

Issues in the judgment

#
minor

Judgment records conflicting testimony on the date of death of the registered owner: the plaintiff's affidavit narrative states the deceased died on 09.10.1994 while DW1 testified the deceased died in 1984

minor

The judgment refers to a supplementary affidavit 'sworn on 201.1.2026', an apparently erroneous date

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kathuu v Kathiga (Sued as the administratrix of the Estate of the M’Tuerandu M’Ithiuru – Deceased) (Enviromental and Land Originating Summons E026 of 2025) [2026] KEELC 1867 (KLR)", Case Analysis (2026). Originating Summons dated 6.10.2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1867/eng@2026-03-16

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