Karuntimi Raiji v M’makinya M ’itunga [2013] eKLR

Key Facts

Deceased Name

Issues

• The court determined if the respondent's adverse possession claim, initiated via an Originating Summons before his death in 1996, could survive under Section 2(1) of the Law Reform Act. It affirmed that such claims are protected overriding interests and thus survive for the estate's benefit.
• The court assessed if the respondent's continuous, uninterrupted occupation of the lower part of the suit property from 1954 to 1996, without the appellant's permission or acknowledgment, satisfied the requirements for adverse possession under the Registered Lands Act, particularly the 12-year possession threshold and absence of consent.
• The court evaluated if the respondent's two civil suits (1985 and 1990) seeking to confirm ownership rights disrupted his 21-year uninterrupted adverse possession (1973-1996), concluding that such litigation did not constitute physical disruption under the doctrine of adverse possession.
• The court reviewed the substitute party's legal capacity to act on behalf of the deceased respondent's estate, concluding that the unopposed 1997 substitution order provided sufficient authority, and no appeal against it invalidated the process.
• The appellant argued that his 1973 first registration under the Registered Lands Act created an absolute, indefeasible title. The court analyzed whether this registration could override the respondent's claimed adverse possession rights under Section 30(f) of the Act.

Date of Death

Holdings

• The court determined that the respondent's occupation of the lower part of the land from 1954 to 1996 was adverse and uninterrupted, meeting the 12-year requirement for adverse possession. The prior civil suits in 1985 and 1990 did not interrupt this occupation, as they were part of the respondent's efforts to assert ownership rights. The court emphasized that adverse possession claims are protected under Section 30(f) of the Registered Lands Act and are not invalidated by the absence of a trust or permission from the registered proprietor.
• The court rejected the appellant's argument that a claim for adverse possession does not survive a deceased person. It cited Section 2(1) of the Law Reform Act, which states that causes of action subsisting at death survive for the estate, and confirmed the respondent's claim was valid at the time of his death. The court also ruled that the substitution of Mr. Mwongera as the legal representative was lawful, as the appellant did not oppose it and it was filed within the required timeframe.
• The appeal is dismissed with costs, upholding the High Court's judgment that the respondent acquired an absolute title to the lower part of the suit property by adverse possession. The court confirmed that the respondent's uninterrupted possession of over 21 years, without the appellant's permission, satisfied the legal requirements for adverse possession under Section 30(f) of the Registered Lands Act. Additionally, the court validated the substitution of Mr. Mwongera M'Makinya as the legal representative of the deceased respondent, affirming that the claim for adverse possession survives the deceased's estate under the Law Reform Act.

Remedies

• The court declared that the plaintiff acquired by adverse possession an absolute title to the lower side of the suit property parcel no. Nyaki/Thuura/131.
• The court ordered that the estate of M'Makinya M'ltunga deceased be registered as the owner of the lower part of the suit property, cancelling the original title, subdividing the land into upper and lower parts, and registering each in the respective parties' names.

Probate Status

Legal Principles

• The court rejected the appellant's argument that prior civil suits (1985 and 1990) interrupted the respondent's adverse possession. It held that these suits were part of the respondent's ongoing claim of right to the property and did not constitute a disruption of possession, aligning with the principle that adverse possession claims are not interrupted by litigation asserting ownership.
• The court upheld the respondent's claim to adverse possession over the lower part of the suit property, finding that his uninterrupted occupation for over 21 years (since 1973) without the appellant's consent satisfied the statutory requirements. The judgment emphasized that adverse possession requires continuous, adverse, and exclusive occupation for 12 years, with the burden on the registered proprietor to prove permission was granted.
• The court affirmed that the burden of proof lay with the appellant to demonstrate that the respondent's occupation was not adverse. Since the appellant failed to provide evidence of permission or consent, the presumption of adverse possession in favor of the respondent was not rebutted.
• The court applied the presumption of continuance regarding the respondent's occupation, noting that the respondent's possession from 1954 to 1973 and beyond was presumed to remain adverse unless the appellant could prove otherwise. This presumption was not rebutted due to lack of evidence.

Succession Regime

Precedent Name

• Mwinyi Hamis Ali v Attorney General and Philemon Mwaisaka Wanaka
• Benjamin Kamau Murima & Others v Gladys Njeri
• Francis Gitonga Macharia v Muiruri Waithaka
• Michael Githinii Kimotho v Nicholas Muratha Mugo
• Ndatho v Itumo & 2 others

Executor Name

Cited Statute

• Registered Lands Act, Cap 300 of the Laws of Kenya
• Law Reform Act, Cap 26 of the Laws of Kenya

Executor Appointment

Judge Name

• Martha Koome
• Alnashir Visram
• Otieno-Odek

Passage Text

• Accordingly, the submission by the appellant that a claim in adverse possession does not survive the deceased is not supported by the provisions of Section 2 (1) of the Law Reform Act.
• We find that the respondent has an overriding interest over the lower part of the suit property.
• I make a finding that the plaintiff's continuous occupation of the suit property adversely to the defendant's title for more than 12 years was not interrupted by the previous suits filed by him.

Beneficiary Classes