[2009] KEHC 1294 (KLR)
The court held that the applicant's claim for adverse possession could not succeed because the land in question was first registered in 1998, and the suit was filed in 2008. Since only 10 years had elapsed since registration, the statutory period of 12 years required for adverse possession had not been met. The...
Source-derived case information.
- Citation
- [2009] KEHC 1294 (KLR)
- Parties
- Applicant: Munyi Alfred; Respondent: James Macharia Kariuki; Respondent: Peter Mirigu Kariuki
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 9 of 2008
- Procedural Posture
- Civil Case / Judgment
- Outcome
- dismissed
- Judges
- J Karanja
- Legal Topics
- Adverse Possession, Land Registration, Title Acquisition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Munyi Alfred
Applicant
James Macharia Kariuki
Respondent
Peter Mirigu Kariuki
Respondent
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the applicant has acquired title to Land Parcel No. NTHAWA/RIANDU/3158 by way of adverse possession.
- 2 Whether the period required for adverse possession had elapsed at the time of filing the suit.
Ratio Decidendi
The court held that the applicant's claim for adverse possession could not succeed because the land in question was first registered in 1998, and the suit was filed in 2008. Since only 10 years had elapsed since registration, the statutory period of 12 years required for adverse possession had not been met. The applicant's occupation prior to registration did not count towards the limitation period, as adverse possession can only run against a registered owner. Consequently, the suit was filed prematurely and the applicant failed to prove his case on a balance of probabilities.
Court Disposition
dismissed
Orders
- The originating summons is hereby dismissed with no order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 9 of 2008
MUNYI ALFRED.........................................................APPLICANT
VERSUS
JAMES MACHARIA KARIUKI....................1ST RESPONDENT
PETER MIRIGU KARIUKI...........................2ND RESPONDENT
J U D G M E N T
The Applicant filed his Originating Summons on 8/2/2008. He is seeking a declaration against both defendants to the effect that he has acquired Title to Land Parcel No. NTHAWA/RIANDU/3158 by way of adverse possession. He says that he has been in continuous and uninterrupted possession and occupation of the said parcel of land for more than 20 years. He therefore wants the court to order that the same be registered in his name. In his supporting affidavit, he claims that he entered into occupation of the said land in 1962 or thereabouts.
Both Respondents are said to have been served with the originating summons but they did not file any replying affidavits. The matter therefore proceeded by way of formal proof. The Plaintiff/Applicant adduced viva voce evidence and stated that he has lived on the said land from 1962 until January 2008 when the Respondents attempted to evict him. After the close of his case, counsel for the plaintiff/Applicant filed a written submission and cited 2 authorities. I have considered them along with the evidence adduced by the plaintiff/Applicant and the law applicable.
Unfortunately for the Plaintiff/Applicant, the law is not on his side. I say so because it is trite law that a claim for adverse possession can only lie against the registered owner of the land in question. According to the Plaintiff/Applicant, he settled on the said land in 1962. The extract of Title annexed to the originating summon however shows that the land in question was registered for the first time in 1998. Time against the registered owner therefore started running in 1998 and not a day earlier. Adverse ownership can only run against a registered owner. This was so held by the Court of Appeal in the Case of FRANCIS GITONGA MACHARIA –V- MUIRURI Civil Appeal No. 110 /1997.
In this case therefore, time stated running in 1998 and stopped in 2008 when the Plaintiff/Applicant filed this suit. Clearly, 12 years had not elapsed. This suit was filed prematurely and a claim for adverse possession does not therefore lie. In the circumstances, I find that the plaintiff has failed to prove his case against the defendants on a balance of probabilities. The originating summons is hereby dismissed with no order as to costs.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 4th day of Nov. 2009.
In presence of:- Mr. Muriithi for applicant.