Case ID:174713

James Murithi Silas v Dorothy Ngaruini & another [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 24 of 2018 (OS)

Parties:

James Murithi Silas v Dorothy Ngaruini & Muriungi M’ngaruini (sued as the Legal Administrator of the Estate of Ngarunyi Mwinja alias Ngaruni M’ikwiriga

Date Delivered:

05 May 2021

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Judgment

Judge(s):

Lucy Ngima Mbugua

Citation:

James Murithi Silas v Dorothy Ngaruini & another [2021] eKLR

Advocates:

Karanja for plaintiff

Court Division:

Environment and Land

County:

Meru

Advocates:

Karanja for plaintiff

History Advocates:

One party or some parties represented

Case Outcome:

Plaint allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC CASE NO. 24 OF 2018 (OS)

JAMES MURITHI SILAS......................................................................................PLAINTIFF

VERSUS

DOROTHY NGARUINI..............................................................................1

ST

DEFENDANT

MURIUNGI M’NGARUINI (Sued as the Legal administrator

of the

Estate of NGARUNYI MWINJA

alias NGARUNI M’IKWIRIGA.......2

ND

DEFENDANT

JUDGMENT

1. The Applicant filed an Originating Summons under Section 7, 17, 18, 37 and 38 of the Limitations of Actions Act Cap 22 and Section 28(h) of the Land Registration Act 3 of 2012 seeking the following Orders;

a) A declaration that the plaintiff has acquired by way of adverse possession ownership of a portion of land measuring 1.5 acres out of land parcel NO. NKUENE/U-MIKUMBUNE/600 situated in MIKUMBUNE LOCATION, MERU COUNTY.

b) Alternatively and without prejudice to the foregoing, that the Estate NGARUNYI MWINJA alias NGARUNI M’IKWIRIGA-deceased holds 1.5 acres out of land parcel NO. NKUENE/U-MIKUMBUNE/600 in trust for the plaintiff

c) An order that the defendants do execute a valid transfer instrument for 1.5 acres out of land parcel NO. NKUENE/U-MIKUMBUNE/600 in favor of the plaintiff and in default the Executive Officer of this Hon Court be empowered to execute such transfer instrument.

d) Costs of the suit.

2. The Originating Summons is supported by the Affidavit sworn by James Murithi Silas on 19

th

March 2019. The applicant avers that the family and relatives of the deceased approached him to assist them in buying a portion of land parcel NO. NKUENE/U-MIKUMBUNE/600 so as to enable them pursue a succession cause. Thus the applicant proceeded to buy 1. 5 aces of the suit land. He took immediate possession after signing the agreement dated 11

th

November 2000.

3. The plaintiff contends that he has been in open, public and exclusive occupation and possession of the land, he has fenced it and he farms the said land.

4. He further avers that when the 2

nd

defendant filed the succession suit, he did list the plaintiff’s claim and the 1

st

confirmation of grant had allocated him his 1.5 acres. However the 1

st

defendant filed an objection and the grant was revoked. He adds that he has lived on the said portion with the full knowledge of the heirs of the Estate NGARUNYI MWINJA alias NGARUNI M’IKWIRIGA-deceased since 2000 and he has never been dispossessed in any way.

5. The suit proceeded as a formal proof. The 1

st

defendant entered appearance but never filed her defence. The 2

nd

defendant never entered appearance.

6. During the trial,

PW1,

James Murithi Silas

adopted his statement dated 19.6.2018 as his evidence. He also produced the documents in his list dated 19.6.2018 as his exhibits.

DW1,

Muringi M’Ngaruni,

the 2

nd

defendant was in court and he joined issues with the plaintiff.

7. It was submitted for the plaintiff that he has proven the elements of adverse possession by being in open, continuous and exclusive possession of the suit land for a period of 12 years which was uninterrupted and peaceful.

8. The issue for determination is

whether the Applicant has acquired title

to 1½ acres out of the suit land

by way of adverse possession

.

9. In the case of

Mtana Lewa –v- Kahindi Ngala Mwangandi- COA MALINDI (20

1

5) eKLR

it was held that:

“Adverse Possession is essentially a situation where a person takes Possession of land, asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya 12 years.”

Also see

Paul Mwangi Gachuru vs. Kamande Nguku (2017)

10. The claim of the plaintiff that he has been in exclusive possession of the suit land from the time he occupied the same in year 2000 has not been challenged. If anything, the 2

nd

defendant has admitted the claim, while the 1

st

defendant failed to file her defence despite the fact that she had entered appearance. In the circumstances, I find that the plaintiff has proved his case on a balance of probabilities. I proceed to give the following orders;

a) A declaration is hereby issued that the plaintiff has acquired by way of adverse possession ownership of a portion measuring 1

½

acre

s

out of land parcel NO. NKUENE/U-MIKUMBUNE/600

.

b) An order is hereby issued that the defendants do execute transfer instrument

s

for

the

1

½

acre

s

out of land parcel NO. NKUENE/U-MIKUMBUNE/600 in favor of the plaintiff and in default the Executive Officer of thi

s

Court is

hereby

empowered to execute

the

transfer instrument

s

.

c) Each party to bear their own costs.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 5

TH

DAY OF MAY, 2021 IN PRESENCE OF:

C/A: Kananu

Karanja for plaintiff

HON. LUCY. N. MBUGUA

ELC JUDGE