[2015] KEHC 5706 (KLR)
The court found that the plaintiff entered into a sale agreement for the suit land in 1996 and took possession. The agreement became null and void for want of Land Board Consent within six months, as required by law. Consequently, the statutory period for adverse possession commenced from the date the agreement...
Source-derived case information.
- Citation
- [2015] KEHC 5706 (KLR)
- Parties
- Plaintiff: Charles Muisyo Mutua; Defendant: Judah Wambua Ntheketha; Defendant: Samuel Mutie Nzoka alias Mutie Nzoka Itaa
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 124 ‘B’ of 2012
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- Plaintiff declared to have acquired title by adverse possession; registration of title ordered.
- Judges
- CM Kariuki
- Legal Topics
- Adverse Possession, Limitation of Actions, Land Registration, Title Acquisition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Muisyo Mutua
Plaintiff
Judah Wambua Ntheketha
Defendant
Samuel Mutie Nzoka alias Mutie Nzoka Itaa
Defendant
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the plaintiff acquired title to Muputi/Kimutwa/1813 by adverse possession.
- 2 Whether the absence of Land Board Consent rendered the sale agreement void, triggering the limitation period for adverse possession.
- 3 Whether the plaintiff's occupation was open, continuous, and uninterrupted for the statutory period.
Ratio Decidendi
The court found that the plaintiff entered into a sale agreement for the suit land in 1996 and took possession. The agreement became null and void for want of Land Board Consent within six months, as required by law. Consequently, the statutory period for adverse possession commenced from the date the agreement became void. The plaintiff demonstrated open, continuous, and uninterrupted occupation of the land for the requisite period, satisfying the legal requirements for adverse possession. The defendants did not contest the claim. The court therefore declared the plaintiff to have acquired title to Muputi/Kimutwa/1813 by adverse possession and ordered registration in his name.
Court Disposition
Plaintiff declared to have acquired title by adverse possession; registration of title ordered.
Orders
- The plaintiff is declared to have acquired Muputi/Kimutwa/1813 by adverse possession and shall be registered as proprietor.
- The Land Registrar is directed to rectify the register to substitute the 2nd defendant's name with that of the plaintiff.
Full Case Text
Judgment text and source record
34 paragraphs
No.96/2015
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
LAND AND ENVIRONMENT DIVISION
CIVIL CASE NO.124 ‘B’ OF 2012 (O.S)
IN THE MATTER OF LIMITATION OF ACTIONS ACT (CAP 22)
AND
IN THE MATTER OF ACQUISITION OF THE TITLE BY ADVERSE POSSESSION BEING MUPUTI/KIMUTWA/1813
BETWEEN
CHARLES MUISYO MUTUA ………………………..………………. PLAINTIFF
VERSUS
JUDAH WAMBUA NTHEKETHA ……………..…...…….……1ST DEFENDANT
SAMUEL MUTIE NZOKA alias
MUTIE NZOKA ITAA ……………………………..……….… 2ND DEFENDANT
J U D G M E N T
By Originating Summons dated 18. 4.2012 the Plaintiff seeks a declaration that he acquired Muputi/Kimutwa/9813 by adverse possession and thus he be registered as the proprietor. The Originating Summons is supported by Plaintiff’s affidavit sworn on 18. 4.2015. The Defendant was served but never replied to oppose the same claim.
On 29. 9.2012 the court directed same Originating Summons be disposed by Affidavits evidence and canvased by written submissions. The Plaintiffs evidence in affidavit is to the effect that on 7. 9.1996 the 1st Defendant entered into an agreement for suit plot No.1564 Kimutwa whereof he paid KShs.43,500/-.
By 2 supplementing agreements dated 21. 9.1996 and 3. 11. 1996, the 1st Defendant assigned his interest to the Plaintiff and sold suit land to the Plaintiff. The Plaintiff took possession and has since been in continuous, open and uninterrupted occupation of the suit land. The land 1813 was sub-divided in 1997 into 1564 and 1813. The Plaintiff thus claims to have acquired 1813 by way of adverse possession since the agreement entered became null and void for want of Land Board Consent.
Under Section 38(1) of Cap. 22 where a person claims to have become entitled by adverse possession to land registered under any of the Act cited in Section 37 …. He may apply to High Court for an order that he be registered as the proprietor of the land in place of the person that registered as the proprietor of the land. The Plaintiff has cited the following authorities to support his case.
RAMCO INVESTMENT LTD –VS- INI-DRIVE-IN THEATRE LTD.(2014) eKLR 137
MBIRA –VERSUS- GACHUHI (2002) IEAR 137
HOSEA –VS- NJIRU & OTHERS 1974 EA 526
JOSEPH M. SITUMA –VS- NICHOLAS MAKHANU THERONGO 2007 – eKLR.
The court makes the following findings;
The Plaintiff bought suit land as demonstrated by the agreement attached in 1996, then took possession of the same suit land.
There was no Land Board Consent to bless the transaction within 6 months of the agreement and thus by virtue of Section 6 of Cap 302. The agreement became null and void. The time of 12 years period prescribed by law started to run thereafter.
The Plaintiff has proved to have been in open, continuous and uninterrupted occupation of the suit land thus meeting the threshold stipulated in statute and cited authorities. The court thus makes the following orders:
The Plaintiff is declared to have acquired Muputi/Kimutwa/1813 and thus court directs he be registered as the owner/proprietor.
The Land Registrar to rectify register to substitute 2nd Defendant name with that of the Plaintiff.
Since Defendants did not contest the claim, no order as to costs.
DatedandDeliveredatMachakos,this 6thday ofMarch, 2015.
CHARLES KARIUKI
JUDGE