[2007] KEHC 1224 (KLR)
The court found that there was a valid agreement for sale and subdivision of the land between the deceased parties, and that the plaintiff, as widow and legal representative of the purchaser, had been in continuous and exclusive possession of Limuru/Kamirithu/716 for over 12 years. The court held that the...
Source-derived case information.
- Citation
- [2007] KEHC 1224 (KLR)
- Parties
- Plaintiff: Monica Wambui Kamau; Defendant: Ayub Ngugi Kimani; Defendant: Gerarld Wangae
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 263 of 2005
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Adverse Possession, Land Registration, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monica Wambui Kamau
Plaintiff
Ayub Ngugi Kimani
Defendant
Gerarld Wangae
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to ownership of Limuru/Kamirithu/716 by way of adverse possession.
- 2 Whether the agreement between the deceased parties and subsequent occupation entitles the plaintiff to registration of the land.
Ratio Decidendi
The court found that there was a valid agreement for sale and subdivision of the land between the deceased parties, and that the plaintiff, as widow and legal representative of the purchaser, had been in continuous and exclusive possession of Limuru/Kamirithu/716 for over 12 years. The court held that the requirements for adverse possession under the Limitation of Actions Act had been satisfied. The absence of the defendants and their advocate at the hearing meant the plaintiff's evidence was unchallenged. Accordingly, the court ordered that Limuru/Kamirithu/716 be registered in the estate of James Kamau Thiongo for distribution to his dependants upon obtaining a full grant in the Family...
Court Disposition
judgment for the plaintiff
Orders
- The land parcel Limuru/Kamirithu/716 shall be registered in the estate of James Kamau Thiongo alias Kamau Thiongo.
- Distribution of the land to dependants shall be subject to obtaining a full grant in the Family Division of the High Court.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 263 of 2005
MONICA WAMBUI KAMAU ………...……...........……………. PLAINTIFF
VERSUS
AYUB NGUGI KIMANI ………………………...……..……1st DEFENDANT
GERARLD WANGAE …………………….……….....… 2ND DEFENDANT
JUDGMENT
1. Land and Environmental Law Division
2. Subject of main suit: Adverse Possession
i. Land
ii. LR Original Limuru Kamirithu/406
iii. Sub-divided to Limuru/Kamirithu 716 and Limuru/Kamirithu/717.
iv. Estate of late James Kamau Thiongo alias Kamau Thiongo.
Claim ownership on Limuru/Kamirithu/ 716.
v. Defendant absent on date of hearing.
Order IXb r 3 (a) Civil Procedure Rules
vi. Directions of Originating Summons
taken on 20 June 2003 Ojwang J
vii. Trial/submissions heard.
3. Held: Plaintiffs entitled to land by way of Adverse Possession to the estate.
4. Case law – nil
5. Advocate:
P.M. Njenga for J.M. Njenga & Co. Advocates for the plaintiff- present
Virshnu for Sharma & Co. Advocates for the defendant- absent
1: Background
1. James Kamau Thiongo alias Kamau Thiongo (now deceased) entered into a sale agreement with Rahab Wambui Reuben (also deceased) to purchase portion of her land being original LR Limuru/Kamirithu/406 that consisted of 6. 8 acres. The total acreage bought in 1971 was 2 acres for a total price of Ksh.5,800/- (2,900/- per acre).
2. The parties obtained land board consent. They then sub-divided the land to parcel Limuru/Kamirithu 716 – 2 acres and Limuru/Kamirithu 717 – 4. 8 acres. Unfortunately before the transfers could be effected the deceased James Kamau Thiongo passed away. His widow Monicah Wambui Kamau placed a caution on 8 March 2004 on the said land.
3. The seller Rahab Wambui Reuben also passed away. The plaintiff as the representative of the deceased estate and his widow sued the representative of the seller Rahab Wambui Reuben for possession of the land.
4. The widow plaintiff has informed this court that she herself has lived on the suit land for over 12 year and is entitled to the same by way of Adverse Possession.
5. Direction for hearing this suit filed on 8 March 2005 was taken before Ojwang J on the 20 October 2005 under order XXXVI r 8a, 12 Civil Procedure:.
6. On the day called out for hearing both defendants and their advocate were absent. The trial/submissions proceeded on under order IXb r 3a Civil Procedure Rules.
I: Finding
7. From the evidence before me there existed an agreement between James Kamau and Rahab Wambui Reuben. There is a written and translated agreement from Kikuyu to English. That the intention of the parties was to transfer Limiru/Kamirithu/716 to the deceased. The sub-division is complete but both parties have nonetheless died before transfer could materialize.
8. I am satisfied that Monica Wambui Kamau is the widow and legal representative of Kamau Thiongo. I hereby allow this application and enter judgment for the plaintiff.
9. That the land parcel Limuru/Kamirithu/716 be registered in the estate of James Kamau Thiongo alias Kamau Thiongo – for distribution thereafter to his dependants on a full grant being obtained in the Family Division of the High Court.
Dated his 15th day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
P.M. Njenga for J.M. Njenga & Co. Advocates for the plaintiff- present
Virshnu for Sharma & Co. Advocates for the defendant- absent