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ELCAllowedELC Civil Suit No. 86 of 2010 (OS)· [2016] KEELC 954 (KLR)

Bonface Kahindi Katana v Virnekas Mwanaharusi Nihazi & another [2016] KEELC 954 (KLR)

High Court of Kenya
28 April 2016
548 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, Bonface Kahindi Katana, filed an originating summons on 22 March 2010 seeking to be declared proprietor of Plot No. 2630/111/MN, Title No. CR 25067, by adverse possession. The defendants, Virnekas Mwanaharusi Nihazi and Vernekas Ernst Dieter, were registered owners of the parcel since 17 January 1979 per the certified record of title. The defendants never entered appearance despite service by advertisement in the Daily Nation for both the summons and the hearing notice. The court directed that the matter proceed by affidavit evidence, and it was heard unopposed on 14 December 2015. The plaintiff deposed that he had built a house on the land and carried on farming thereon, occupying it openly for over twelve years without interruption. Applying the test in Wanje vs Saikwa (1984) KLR 275, the court required proof that the land was registered in the defendants' names, that the plaintiff had dispossessed them for over twelve years, and that possession was open and uninterrupted. Finding those elements uncontroverted and satisfied, the court granted the prayers in the originating summons in terms of ground 5, declaring the plaintiff entitled to the land by adverse possession. It directed the Registrar of Titles, Mombasa, to rectify the register and register the plaintiff as proprietor in place of the defendants, with the plaintiff to bear his own costs.

Key legal issues

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01

Whether the plaintiff established a claim of adverse possession over plot No. 2630/111/MN

Holding

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.

Reasoning

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.

p. 2
02

Whether service by advertisement sufficed for the suit to proceed unopposed

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 3.Plaintiff to bear his own costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActCap 22

Cases cited (1)

  • Wanje vs Saikwa
    (1984) KLR 275
Jurisdiction invoked
Limitation of Actions Act (Cap 22) - originating summons for adverse possession in respect of Plot No. 2630/111/MN

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.