Bonface Kahindi Katana v Virnekas Mwanaharusi Nihazi & another [2016] KEELC 954 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a claim of adverse possession over plot No. 2630/111/MN
The court held that the plaintiff proved the requirements for adverse possession and was entitled to be registered as proprietor of the suit land in place of the defendants.
The court applied the test in Wanje vs Saikwa (1984) KLR 275 requiring proof that the land is registered in the defendant's name, that the applicant has dispossessed the owner for over 12 years, and that possession was open and uninterrupted. The plaintiff deposed that he built a house and farmed the land for over twelve years, openly and without interruption. Those facts were uncontroverted as the defendants, though duly served by newspaper advertisement, did not enter appearance or defend the suit.
Whether service by advertisement sufficed for the suit to proceed unopposed
Service by advertisement in a widely circulated newspaper is allowed in law; the defendants' failure to appear after such service left the plaintiff's uncontroverted evidence standing.
The defendants were served with the summons and hearing notice by advertisement in the Daily Nation but did not enter appearance within the prescribed 21 days. The court found such service lawful and proceeded on affidavit evidence as directed. With no rebuttal of the plaintiff's deposition, his assertion that he had fulfilled the requirements of adverse possession was accepted as uncontradicted.
Legal principles established
#- In a claim for adverse possession the applicant must prove: (1) the land is registered in the name of the defendant; (2) the applicant has dispossessed the defendant for over 12 years; and (3) the possession was open and without interruption by the owner.
Court orders
#- 1.Declaration that the plaintiff is duly and legally entitled to the said land by virtue of adverse possession (ground 5 of the originating summons)
- 2.The Registrar of Titles Mombasa directed to rectify the register and register the plaintiff as proprietor of plot No. 2630/111/MN, Title No. CR 25067 measuring 0.0375 in place of the defendants
- 3.Plaintiff to bear his own costs of the suit
- Jurisdiction invoked
- Limitation of Actions Act (Cap 22) - originating summons for adverse possession in respect of Plot No. 2630/111/MN
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joseph Pkerker Ngolepus v William Lonapa [2019] KEELC 2075 (KLR)[2019] KEELC 2075 (KLR)30 Jul 2019
- Republic v District Land Adjudication and Settlement Officer Tigania East/West District Ex-parte Zaverio Mitheka [2018] KEELC 4742 (KLR)[2018] KEELC 4742 (KLR)23 Jan 2018
- Naomi Wanjiku Nderitu v Simon Mwangi Njure [2016] KEELC 223 (KLR)[2016] KEELC 223 (KLR)14 Oct 2016
- Nishith Yogendra Patel (the Legal Representative of Yogendra Purshottam Patel Deceased]) v Pascale Mireille Baksh (Nee Patel) & 2 others [2015] KEELC 736 (KLR)[2015] KEELC 736 (KLR)20 Feb 2015applied
Cite this brief
#Cite this brief
Caselaw, "Bonface Kahindi Katana v Virnekas Mwanaharusi Nihazi & another [2016] KEELC 954 (KLR)", Case Analysis (2016). ELC Civil Suit No. 86 of 2010 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/954/eng@2016-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.