[2008] KEHC 1443 (KLR)
The court found that the plaintiff had been in continuous and uninterrupted possession of the suit land since 1966, having entered into possession after purchasing the land from the defendant's father. The defendant's registration as owner in 1978 did not interrupt the plaintiff's possession. The court applied the...
Source-derived case information.
- Citation
- [2008] KEHC 1443 (KLR)
- Parties
- Plaintiff: Mwangi Wambugu; Defendant: James Mwangi Macharia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 693 of 2006
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Adverse Possession, Land Registration, Purchaser Interest, Continuous Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwangi Wambugu
Plaintiff
James Mwangi Macharia
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff has acquired title to the suit land by way of adverse possession.
- 2 Whether the plaintiff's possession of the land was continuous and uninterrupted for the statutory period.
- 3 Whether the sale by the defendant's father without the defendant's consent affects the plaintiff's claim.
Ratio Decidendi
The court found that the plaintiff had been in continuous and uninterrupted possession of the suit land since 1966, having entered into possession after purchasing the land from the defendant's father. The defendant's registration as owner in 1978 did not interrupt the plaintiff's possession. The court applied the principles from Wambugu v Njuguna and Public Trustee v Wanduru, holding that a purchaser in possession for over 12 years acquires title by adverse possession. The plaintiff's possession was open, notorious, and adverse to the interests of the registered owner. The court concluded that the plaintiff had proved his case on a balance of probabilities and was entitled to be...
Court Disposition
judgment for the plaintiff
Orders
- The plaintiff is declared entitled to the suit land by way of adverse possession.
- The defendant shall transfer the suit land LOC.14/Gakurwe 207 to the plaintiff.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 693 of 2006
MWANGI WAMBUGU ….…….…………………………. PLAINTIFF
VERSUS
JAMES MWANGI MACHARIA …….……………….. DEFENDANT
JUDGMENT
1: Background
1. This Originating Summons is for determination on the question of the question of adverse possession.
2. Mwangi Wambugu, the plaintiff herein had bought the parcel of land LOC.14/Gakurwe 207 for Ksh.2,200/- on the 11 April 1966 from the late Mathi Mungunyu; the father of James Mwangi Macharia the defendant herein.
3. The plaintiff was put in possession of the land and began to develop and construct on the said land. To date the total value of development is at 1. 548 million.
4. The plaintiff claims to have been on the suit land for over 40 years and prays he be awarded the land by way of adverse possession.
5. The defendant claimed the property was his. That his father had no right to sell his property without his consent. He wants possession of the said property. The matter has been before the various Chiefs, District Officers and the administration for hearing.
II: Opinion
6. The property section register and search certificate concerning the said property discloses the following facts.
i) That the land was first registered in the name of (Mathi Mungunyu) Muchiri Mathu on 29. 9.1966.
ii) A land certificate was issued on 23 December 1991.
iii) On 1 July 1976 a caution was placed by the plaintiff claiming a purchasers interest.
iv) 18 April 1978 the defendant herein was registered and a land certificate issued on 26 April 1978.
7. Since 1966 the plaintiff has been on the land. His possession has been continuous and uninterrupted.
8. The impression the defendants gave was that he was at all times the first registered owner of the suit premises. This was not the case.
9. I rely on the case law of:-
Wambugu v Njuguna 1983 KLR 172
and Public Trustee v Wanduru 1984 KLR 314.
Concerning purchasers who have taken possession of land they had bought and lived on the land for over 12 years. The court have ruled depending on the circumstances of each case that such buyers of land are and can be in possession from the day the sale agreement becomes void.
I therefore find that plaintiff has proved his case on adverse possession and accordingly enter judgment for him with costs of the case to the plaintiff.
DATED AT NAIROBI THIS 23RD DAY OF JULY 2008.
M.A. ANG’AWA
JUDGE
W. Gichuki instructed by Waiganjo Gichuki & Co. Advocates for the plaintiff - present
James Mwangi Machria –Respondent/Defendant in person - present