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ELCAllowedMalindi HCCC (not stated in excerpt; suit commenced by Plaint dated 14th September 2011)· [2014] KEELC 429 (KLR)

Samson Kazungu Kalama v Robert Shume,Kazungu Dzombo (Boya-Boya),Nicholas Ngolo Gona & Lucy Buya & (Civil Case 144 of 2011) [2014] KEELC 429 (KLR)

Environment and Land Court (High Court), Malindi
4 April 2014
OAO. A. Angote
4,889 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, registered proprietor of plot number 7651/2 (originally 570/2) Malindi, sued the Defendants by Plaint filed 14th September 2011 seeking a declaration of exclusive possession, a permanent injunction and vacant possession, alleging wrongful entry and occupation in October 2010. The Defendants asserted ancestral ownership, occupation since time immemorial, and title by adverse possession under sections 7, 13 and 38 of the Limitation of Actions Act. The court found the Plaintiff purchased the land in 1972, compensated those with cashewnut trees and crops (as evidenced by a 1972 Agricultural Officer's report, P exhibit 3) and obtained title in 1996 upon sub-division. The Defendants' parents had been moved off the land by the Government around 1970 and compensated; there was no evidence of re-entry or continuous possession. The Defendants' structures were erected only around 2010, and the 2nd and 4th Defendants never testified. Applying Wambugu v Njuguna and John O. Oyalo Wabala, the court held the Defendants failed to prove 12 years of continuous, peaceful possession or animus possidendi, and did not impugn the Plaintiff's title under article 40(6). They were therefore trespassers. On 4th April 2014 the court allowed the claim, issuing declarations of the Plaintiff's exclusive possession and the Defendants' wrongful occupation, a permanent injunction, vacant possession, and costs against the Defendants.

Key legal issues

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01

Adverse possession

Holding

The Defendants failed to prove continuous uninterrupted occupation for 12 years or animus possidendi; their claim failed

Reasoning

The Defendants or their parents were compensated for cashewnut trees in 1972 and were moved off the land by the Government in 1970; there was no evidence of re-entry and continuous possession thereafter. Their structures went up only around 2010. Compensation and removal interrupted any possession, so the 12-year period never ran against the registered proprietor.

p. 7
02

Trespass

Holding

Having failed on adverse possession, the Defendants are trespassers

Reasoning

The Plaintiff is the registered proprietor and has been in possession since 1972 without dispossession for over twelve years. The Defendants' entry in 2010 was an unjustifiable intrusion upon land in his possession, entitling him to injunction and vacant possession.

p. 7
03

Validity of the Plaintiff's title

Holding

The Defendants did not prove the title was unlawfully issued

Reasoning

The Plaintiff produced an indenture of 1972, a postal search certificate and evidence of payment of compensation to those with crops on the land. Under article 40(6), the constitutional protection of property stands absent proof of unlawful acquisition, which the Defendants did not discharge on a balance of probability.

p. 6

Legal principles established

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  • Time for adverse possession begins to run when the true owner ceases to be in possession; mere presence of crops on land does not amount to possession nec vi nec clam nec precario
  • The constitutional right to property can only be defeated by showing the title was unlawfully acquired

Court orders

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  1. 1.A declaration that the Plaintiff is entitled to exclusive and unimpeded right of possession and occupation of the suit property
  2. 2.A declaration that the Defendants are wrongfully in occupation of the suit property
  3. 3.A permanent injunction restraining the Defendants from remaining on or continuing remaining on the suit property
  4. 4.The Defendants to give vacant possession of the property
  5. 5.The Defendants to pay the costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsections 7, 13 and 38
  • Land Titles Act (repealed)section 21
  • Constitution of Kenyaarticle 40(6)

Cases cited (3)

  • JAJ Super Power Cash & Carry Ltd Vs Nairobi City Council & 2 others
    Civil Appeal No. 111 of 2002
  • Wambugu Vs Njuguna
    (1983) KLR 173
  • John O. Oyalo Wabala Vs Corne Lius Otataya Okumu
    Civil Appeal No. 208 of 1997
Jurisdiction invoked
Original jurisdiction as registered proprietor's claim for declaration, injunction and vacant possession; property rights under article 40 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samson Kazungu Kalama v Robert Shume,Kazungu Dzombo (Boya-Boya),Nicholas Ngolo Gona & Lucy Buya & (Civil Case 144 of 2011) [2014] KEELC 429 (KLR)", Case Analysis (2014). Malindi HCCC (not stated in excerpt; suit commenced by Plaint dated 14th September 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/429/eng@2014-04-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.