[2008] KEHC 1778 (KLR)
The court found that the applicant did not prove adverse possession for twelve years, as his occupation from 1989 to 1995 was only six years and not adverse, and from 1995 onwards he occupied the land as a purchaser under a sale agreement with the registered proprietor. However, the evidence established that the...
Source-derived case information.
- Citation
- [2008] KEHC 1778 (KLR)
- Parties
- Applicant: Ciciria Mutitu Njogu; Respondent: Salesio Mwaniki Kandie
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Application 326 of 2002
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- judgment_for_applicant
- Legal Topics
- Adverse Possession, Sale of Land, Land Control Board Consent, Limitation of Actions, Succession and Administration, Transfer of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ciciria Mutitu Njogu
Applicant
Salesio Mwaniki Kandie
Respondent
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the applicant has been in possession of the land for a period exceeding twelve years continuously without interruption and or without force.
- 2 Whether the applicant acquired title to the land by adverse possession under the Limitation of Actions Act.
- 3 Whether the applicant is entitled to transfer of the land as a purchaser under the sale agreement.
Ratio Decidendi
The court found that the applicant did not prove adverse possession for twelve years, as his occupation from 1989 to 1995 was only six years and not adverse, and from 1995 onwards he occupied the land as a purchaser under a sale agreement with the registered proprietor. However, the evidence established that the applicant had purchased the land, paid the full purchase price, and obtained the necessary Land Control Board consent. The only step remaining was registration, which was not completed due to the death of the seller. The administrator of the estate is therefore required to finalize the transaction and transfer the land to the applicant as purchaser. Judgment is entered for the...
Court Disposition
judgment_for_applicant
Orders
- Judgment entered for the applicant against the administrator of the estate.
- The administrator is ordered to transfer parcel Ngandori/Kiriari/2700 to the applicant as purchaser.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Succession 326 of 2002
IN THE MATTER OF THE ESTATE OF MBOGO KIRIAMITI……..DECEASED
AND
CICIRIA MUTITU NJOGU………………………………………….PETITIONER
VERSUS
SALESIO MWANIKI KANDIE……………………………………….OBJECTOR
JUDGMENT
Civil Suit No. 44 (O.S) of 2006 was commenced by Originating Summons dated 10th May 2006.
The applicant as sued the administrator of the estate of Mbogo Kariamiti.
Applicant claims parcel of land known as Ngandori/Kiriari/2700 by virtue of adverse possession and also by having purchased it. The affidavit in support of the claims it is shown that the parcel is registered in the name of Mbogo Kariamiti as proprietor and that in 1989 the Applicant entered into the land and has developed the same. That in about 1995 he entered into sale agreement with the late Mbogo Kariamiti to purchase the said parcel for the sum of Shs.91,300/= and in addition to transfer applicants parcel No. Ngandori/Kiriari/2701 as further consideration. It is sworn that necessary Land Board Consent was obtained but the seller died on 5/6/2005 before the land was transferred to the applicant. The Respondent petitioned and obtained a grant of Representation of the estate of deceased estate. She has refused to proceed with the transaction and transfer the land to the Applicant. In addition to the evidence of affidavit the parties were permitted to offer oral evidence at the hearing. The applicant said on oath that he resides on parcel No.Ngandori/Kiriari/2700. He emphasized that he entered in 1989 and he developed the land. Then in 1995 he entered into an agreement to purchase the same from the deceased registered owner. The seller died before the transfer was effected but the provisions of Land Control Act Cap 302 were complied with. As far as I can see from the pleadings of the parties, there is no dispute about the purchase of land by the Applicant. Regarding the issues posed by the O.S:
(a) Whether the Applicant has been in possession of the land for a period exceeding twelve years continuously without interruption and or without force.
To answer this issue, it is to be noted that there is no evidence how the applicant entered into the land in the year 1989 whether it was adverse to the interest of the registered proprietor. It is to be however noted that the period between 1989- 1995 is only 6 years. Therefore the period of prescription had not passed. Then the Applicant testified that he entered into an agreement to purchase the land. Therefore from 1995 the Applicant was occupying the land under the sale agreement, this was with agreement of the registered proprietor. Therefore it was not adverse possession. And all formalities were complied with except the Registration of the land in the name of Applicant. Applicant and then seller expired n 5/7/200. Therefore the Applicant has not proved adverse possession for 12 years continuously. Regarding issue number 2, the deceased’s title did not extinguish at any time by his death. And the Administrator of his estate should finalize the transaction. Issue numbered 3 the applicant did not acquire land under Limitation of Actions Acts Cap 22. But on evidence which is clear and not controverted the Applicant did purchase the said land from the deceased He completed the payment of purchase price and obtained consent to exchange his plot 2701 with deceased plot 2700. And he is entitled to transfer the plot to him.
Judgment is therefore entered for Applicant against the administrator of estate the Respondent herein. The costs of this suit to be paid by the administrator of the deceased. Judgment for Applicant as a purchaser.
It is so ordered.
Dated this 8th April, 2008
J. N. KHAMINWA
JUDGE
10/4/2008
Khaminwa – Judge
Solomono – Clerk
Cecilia – Present
Read in open court.
J. N. KHAMINWA
JUDGE