[2008] KEHC 900 (KLR)
The court found that the plaintiff had been in continuous and open occupation of the suit property for over 36 years, initially with the permission of the defendant's father. The court held that the issue was no longer about the original debt or sale agreement but about possession. The court determined that a change...
Source-derived case information.
- Citation
- [2008] KEHC 900 (KLR)
- Parties
- Plaintiff: Jane Wanjiru Kamau; Defendant: Benson Wamai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 945 of 2006
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff as prayed with costs.
- Legal Topics
- Adverse Possession, Land Occupation, Title Transfer, Continuous Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wanjiru Kamau
Plaintiff
Benson Wamai
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to the suit property by way of adverse possession.
- 2 Whether the change of ownership of the land affects the plaintiff's claim to adverse possession.
- 3 Whether the plaintiff's occupation was continuous and uninterrupted for the statutory period.
Ratio Decidendi
The court found that the plaintiff had been in continuous and open occupation of the suit property for over 36 years, initially with the permission of the defendant's father. The court held that the issue was no longer about the original debt or sale agreement but about possession. The court determined that a change in title does not affect a claim for adverse possession as long as the occupation remains uninterrupted. The plaintiff's occupation met the requirements for adverse possession, and the court accordingly entered judgment in her favor, granting her the suit property as prayed.
Court Disposition
Judgment for the plaintiff as prayed with costs.
Orders
- Plaintiff declared entitled to the suit property by adverse possession.
- Defendant to pay costs of the suit.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 945 OF 2006
JANE WANJIRU KAMAU ….……………………… PLAINTIFF
VERSUS
BENSON WAMAI ……….…………………………. DEFENANT
JUDGMENT
I: Background of case
1. The plaintiff Jane Wanjiru Kamau is not related at all to Benson Wamai the defendant herein. She does though occupy land parcel No. LOC 10/Koimbi/T420 whereby the said land was originally registered in the name of the defendant’s father.
2. In the evidence before this court, the plaintiffs husband had loaned Ksh.50/- to the defendants father. He failed to pay for the debt. The defendant father permitted the plaintiffs husband to occupy the land. When occupation occurred both the plaintiff and her husband lived peacefully on the land from 1965 to 1989.
3. The defendant began to demand a payment of Ksh.50,000/- in order that he may sell the land to her. She refused. He then decided to return Ksh.50/- to her as being the debt owned. She then refused. The matter went before the Land Disputes Tribunal (No.89/99). They gave an award to the plaintiff. Unfortunately they extended the jurisdiction and the award giving her the land was then set aside by the High Court of Kenya at Nyeri (HCCCA84/01) (Okwengu J).
4. The plaintiff filed this application to this High Court seeking adverse possession.
5. The defendant objected on the grounds that the said possession ceased on the land changing owners. The defendant had sold the land to a third party. He also said his father had transferred land to him as a gift.
II: Opinion.
6. The plaintiff came onto the land through her husband. They occupied the land well over 36 years.
7. The issue herein is no longer a debt on sale agreement in contract but possession. The plaintiff has shown she has been in possession for 36 years uninterrupted until the defendant attempted to sell the land.
8. It was the defendant’s father who put the plaintiff and her husband in possession.
9. The occupation to the land is by the plaintiff who occupied the same and carried out developments.
10. It does met matter that title changes as long as the plaintiff was on the property. See the case of law of:
Public Trustee v Wanduru (1984) KLR (CA 73/02).
11. I would find that the plaintiff has been in continuous and open occupation of the suit property.
I accordingly enter judgment for the plaintiff as prayed with costs.
DATED THIS 23RD DAY OF JULY 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
L.N. Kinuthia instructed by L.M. Kinuthia & Co. Advocates for the plaintiff – present
J.N. Kirubi instructed by Kirubi Mwangi Ben and Co. Adovcates for the defendant - present