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ELCPartially AllowedMalindi ELC Case in respect of LR No. 4161 (Plaint dated 30th March 2009)· [2015] KEELC 416 (KLR)

Godfrey Karume v Kilimo Fondo Shutu & 6 others [2015] KEELC 416 (KLR)

Environment and Land Court (High Court)
19 June 2015
5,943 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court confirmed that long occupation of Government land cannot defeat a registered owner's title through adverse possession in Kenya.

What this practically means

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Executive summary

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The Plaintiff sought a declaration that LR No. 4161, Malindi (1.710 hectares allocated to him in 1986 for industrial purposes and registered in 2004) belongs to him, plus eviction of the Defendants. The 1st, 2nd and 3rd Defendants, members of the Shutu family, asserted they were born on the land, had occupied it openly and adversely for over twelve years, and that the Plaintiff's claim was time barred. The 4th, 5th and 7th Defendants pleaded adverse possession and innocent purchaser status but did not testify. The court held the suit property was Government land within a township when allocated to the Plaintiff, and that under Section 41(a)(ii) of the Limitation of Actions Act, limitation does not run against Government land; occupation of unalienated Government land cannot found adverse possession. The Plaintiff held only an equitable interest until his grant was registered on 16th April 2004, when his right of action accrued; the 2009 suit was therefore timely. The 2001 letter of allotment to the Shutu family over plot 'A' was ineffectual because a portion had already been committed to the Plaintiff and the earlier allotment was never cancelled. The court adopted the Court of Appeal's holding in Training Institute v Agnes Nyavu Charo that legitimate expectation cannot arise from occupation of Government land declared illegal by statute. The Defendants were found to have trespassed after 2001. The Plaint dated 30th March 2009 was allowed as prayed. No separate costs order appears in the judgment.

Key legal issues

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01

Whether adverse possession was established against the Plaintiff's title

Holding

No; the land was Government land when the Defendants' family occupied it, and time only began running against the Plaintiff upon registration of his grant in 2004, so the suit filed in 2009 was not time barred

Reasoning

The suit property was unalienated Government land within a township when allocated to the Plaintiff in 1986. Under Section 41(a)(ii) of the Limitation of Actions Act, the Act does not apply to Government land, so the Defendants' long occupation before allocation could not found adverse possession. The Plaintiff held only an equitable interest until the grant was registered on 16th April 2004, when his right of action accrued. The suit filed in 2009 was therefore within twelve years, and no adverse possession claim lay.

p. 8
02

Whether the Shutu family's 2001 letter of allotment over plot 'A' defeated the Plaintiff's title

Holding

No; the 2001 allotment to the Shutu family was ineffectual because a portion of plot 'A' had already been committed to and allocated to the Plaintiff in 1986 and was never cancelled

Reasoning

The Land Officer's 1995 report identified a fragment 'A1' as committed, which corresponded to the Plaintiff's 1986 allocation. When the Commissioner of Lands issued the 2001 allotment to the Shutu family, he apparently disregarded that report and never cancelled the Plaintiff's allotment. Having offered the land to individuals, the Government was bound to issue titles upon compliance with conditions of the letters of offer, and the court could not declare those allocations unlawful.

p. 7
03

Whether the Defendants trespassed on the suit property

Holding

Yes; although their houses were in the neighbourhood in 1995, the Defendants encroached onto the suit property after their 2001 letter of allotment

Reasoning

The evidence showed the Defendants' dwellings were clustered around site 'A' in 1995 but not on the fragment allocated to the Plaintiff. The Plaintiff had taken possession by fencing and leasing the land to PW2. The Defendants' subsequent entry was on land already allocated and was therefore trespass. Their failure to comply with the conditions of their own allotment compounded their lack of right.

p. 9

Legal principles established

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  • The Limitation of Actions Act does not apply to Government land; adverse possession cannot run against Government land before allocation to a private person
  • Once Government land is allocated to an individual it ceases to be available for allocation to any other person unless the allottee fails to comply with conditions
  • For purposes of Section 7 of the Limitation of Actions Act, the right of action of an allottee accrues on registration of the grant
  • A defendant pleading adverse possession must produce a certified extract of title

Court orders

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  1. 1.The Plaintiff's Plaint dated 30th March 2009 allowed as prayed
  2. 2.Declaration that the Plaintiff is the legal owner of the suit property (implied by the finding and the allowing of the Plaint as prayed)
  3. 3.Eviction of the Defendants from the suit property as sought in the Plaint

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 41(a)(ii)
  • Government Lands Act (repealed)Section 9
  • Registration of Titles Act (repealed)Section 32(1)
  • Registration of Titles Act (repealed)Section 21(2)
  • Civil Procedure RulesOrder 37 Rule 7(2)
  • Repealed Constitution of KenyaProvisions on Trust land

Cases cited (1)

  • Training Institute Vs Agnes Nyavu Charo & 106 Others
    Mombasa Civil Appeal No. 286 of 2010
Jurisdiction invoked
Original civil jurisdiction of the High Court over a claim for declaration of title and eviction from land

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, "Godfrey Karume v Kilimo Fondo Shutu & 6 others [2015] KEELC 416 (KLR)", Case Analysis (2015). Malindi ELC Case in respect of LR No. 4161 (Plaint dated 30th March 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/416/eng@2015-06-19

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