Arthur Ogola Boniface v Gatimu Macharia

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC E001 OF 2024 OS** **ARTHUR OGOLA BONIFACE - PLAINTIFF** **VS** **GATIMU MACHARIA - DEFENDANT** **JUDGMENT** **Introduction & pleadings** 1. Vide the Originating Summons dated 24/4/2024, the Plaintiff moved this Court for orders That; 1. The Hon Court be pleased to declare the Plaintiff as owner of all that parcel of land L.R Ref No 8285/494 [original No 8285/171/323 being the premises comprised in the lease registered at the Lands Office as IR No 26545/1, having obtained the title by adverse possession. 2. That the name of Gatimu Macharia, registered as owner thereof, be deleted from the register and, in its place, entered in the name of Arthur Ogola Boniface 3. That any substituting title or lease in respect of the said property in the name of Gatimu Macharia be cancelled and a lease or certificate of title thereof be issued in the name of Arthur Ogola Boniface. 2. In support of the summons, the Plaintiff filed a supporting affidavit sworn on the same date. He deposed that he is the son of the late Teresia Jura Mulor, who died on 2/1/2019. A death certificate was annexed. 3. That he and his deceased mother had resided on the land in question, believing it belonged to her. All the bills from the water utility company were sent in her name, and she assumed ownership was in her name. Upon his mother's demise, he discovered documents in the house which showed the land belonged to the defendant, a person he knew, had met, and had last seen in the 1980s. 4. Further, he deposed that he also discovered a sale agreement entered into between the deceased mother and the said Gatimu Macharia for the sale of the land. The consideration was Kshs 30,000/-, and the agreement was prepared by the law firm Onyango Otieno & Company Advocates. 5. That he has lived on the land to date while paying bills in respect of the house. He urged the court to grant title by adverse possession. 6. Despite service of the summons, the Defendant failed to enter an appearance or file a defence. The Plaintiff's case is therefore undefended. 7. The Plaintiff elected to prosecute the originating summons by way of written submissions. I have read and considered those submissions. 8. To a large extent, the Plaintiff reiterated the contents of the originating summons. He added that he has been in actual possession of the land for over 12 years. He lives on the suit lands without hindrance from anyone and exercises the rights thereon as an owner of the property. He therefore satisfies the requirements for establishing title by adverse possession. **Analysis and determination.** 1. Having considered the pleadings and the affidavit evidence, the written submissions and all the material placed before the court, the key issue for determination is whether the plaintiff has proven adverse possession so as to warrant the grant of title. 2. The**Black’s Law Dictionary, Ninth Edition** defines Adverse Possession as; “the enjoyment of real property with a claim of right when that enjoyment is opposed to another person’ claim and is continuous, hostile, open and notorious. 1. The rationale of time bar in the recovery of land was set out over a century ago in the case of**Adam v Earl of Sandwich (1877) 2QB 485** where the Learned Bench stated; “The legitimate object of all statutes of limitation is in no doubt to quiet long continued possession, but they all rest upon the broad and intelligible principles that persons, who have at some anterior time been rightfully entitled to land or other property or money, have, by default and neglect on their part to assert their rights, slept upon them for a long time as to render it inequitable that they should be entitled to disturb a lengthened enjoyment or immunity to which they have in some sense been tacit parties “ 1. The legal provisions on Adverse Possession are contained in the Limitation of Actions Act Cap 22 Laws of Kenya, and, in relation to this case, Sections 7, 13, 17 and 38 are applicable. **7. Actions to recover land** An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. **13. Right of action not to accrue or continue unless Adverse Possession** (1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as Adverse Possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in Adverse Possession on that date, a right of action does not accrue unless and until some person takes Adverse Possession of the land. **17. Title extinguished at end of limitation period** Subject to section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished. **38. Registration of title to land or easement acquired under Act;** (1) Where a person claims to have become entitled by Adverse Possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land. 1. In this case, under the lease titled IR No 26545/1, produced by the plaintiff before the court, the suit land, measuring 0.0167 of a hectare and identified as LR No 8285/494, was issued to Gatimu Macharia to hold for 50 years from 1/1/1972 at an annual peppercorn rent [if demanded], subject to the conditions annexed thereto. The lessor in this case was the then County Council of Nairobi [now the City County of Nairobi]. The term of this lease expired on 31/12/2022. The land has therefore reverted to the City County of Nairobi. 2. Under the provisions earlier cited, that is, sections 7, 13, 17 and 38 of the Limitations of Actions Act, adverse possession operates to defeat the title of a private proprietor whose right to recover the land has been extinguished by 12 years of open, continuous and hostile possession of the land in question. 3. Section 41 of the Limitations of Actions Act provides exemptions to the doctrine of adverse possession. It states as follows; “This Act does not—(a)enable a person to acquire any title to, or any easement over—(i)Government land or land otherwise enjoyed by the Government;(ii)mines or minerals as defined in the Mining Act (Cap. 306);(iii)mineral oil as defined in the Mineral Oil Act (Repealed);(iv)water vested in the Government by the Water Act ([Cap. 372](https://kenyalaw.org/akn/ke/act/2016/43)); (v)land vested in the county council (other than land vested in it by section 120(8) of the Registered Land Act (Repealed); or(vi)land vested in the trustees of the National Parks of Kenya; or(b)affect the right of Government to any rent, principal, interest or other money due under any lease, licence or agreement under the Government Lands Act (Repealed) or any Act repealed by that Act”. 1. Notwithstanding that, the Court finds that the lease reverted to the City County of Nairobi on 31/1/2022. The question is whether, by the time the reversion occurred, adverse possession had crystallised. 2. The Plaintiff's case is that he has occupied the land since 1971. His deceased mother purchased the land in 1971, and he has attached receipts showing payment of consideration by Gatimu Macharia. The Law of Contract was enacted in Kenya in 1960; therefore, this transaction falls under it. Section 3(3) of the Law of Contract Act states as follows; No suit shall upon which the suit is founded – * 1. the contract upon which the suit is founded- 1. is in writing 2. is signed by all the parties thereto; and 1. the signature of each party signing has been attested by a witness who is present when the contract was signed by such party: 3. I have reviewed the sale agreement and am satisfied that it is valid. It appears that the transfer to the Plaintiff’s mother was not effected or completed. In Public Trustee v Wanduru Ndegwa [1984] eKLR - Civil Appeal 73 of 1982, Madan J, as he then was, held that adverse possession runs in favour of the purchaser who has fully paid the purchase price from the last instalment. This is because, upon conclusion of the sale, the vendor holds the title in trust for the purchaser. The vendor cannot be entitled to both the purchase price and the land. 4. The next question is therefore when time began to run for the purposes of adverse possession. Assuming the period for calculating adverse possession began in 1971, adverse possession crystallised in 1983 in favour of the deceased and the Plaintiff. By 1983, the period of adversity had run its full course, and the title of Gatimu Macharia had been extinguished. 5. What is the effect of a finding of entitlement to title by adverse possession on the lease's expiry? As stated earlier, the lease expired in 2022. At that point, title by adverse possession had crystallised in the Plaintiff’s name. 6. As matters stand, upon the expiry of the lease, no title is to be declared in favour of the Plaintiff. The Plaintiff appears to have neglected his rights for an extended period and asserted them only too late. The suit was therefore filed too late. It is to be noted that the Plaintiff, having assumed the position of the previous lessee and being in possession of the suit land, may try his luck and apply for a new lease from the lessor following the lease's expiration in 2022. As stated earlier, the title reverted to the City County of Nairobi, and adverse possession is not maintainable in law. 7. In the end, the Plaintiff's case is not maintainable. It is struck out with no orders as to costs. 8. Orders accordingly **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. Mr Keyonzo for the Plaintiff 2. N/A for the Defendant 3. CA- Mr Amos