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ELCAllowedOriginating Summons dated September 15, 2015· [2016] KEELC 1302 (KLR)

Ngowa & 2 others (Suing on behalf of members of 458 Welfare Group) v Viable Properties Kenya Limited (Enviromental and Land Originating Summons 235 of 2015) [2016] KEELC 1302 (KLR)

High Court of Kenya
15 April 2016
OAO. A. AngoteAOA. Omollo
674 words in judgment
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The bottom line

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A Kenyan welfare group won ownership of a plot by proving 15+ years of open, peaceful occupation, showing long uncontested land possession can defeat registered titles.

What this practically means

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Executive summary

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This was an adverse possession claim brought by Originating Summons dated September 15, 2015 under section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules. The Plaintiffs, suing on behalf of "458" Welfare Group, sought determinations on whether the Defendant was the registered proprietor of Plot No. 458 Section I/MN [CR.16333], whether they had been in possession since 2000, whether that possession was quiet, continuous and adverse to the Defendant's title, and whether the Registrar of Titles, Coast Registration District should register them as absolute proprietors free from encumbrances. The Defendant, served by advertisement in the Standard Newspaper with both the Originating Summons and the hearing notice, neither entered appearance nor filed a replying affidavit. The matter proceeded to formal proof on March 31, 2016. PW1 (James Ngowa) testified that he built his house on the plot in 2000 when the land was empty, that the other Plaintiffs followed him, and that the 7.25-acre property is now fully occupied by the group's 43 members, whose occupation has been continuous, uninterrupted and peaceful. A Certificate of Postal Search confirmed the Defendant as registered proprietor. The court found the uncontroverted evidence established continuous, exclusive and peaceful occupation exceeding 12 years, proving entitlement on a balance of probabilities. The court allowed the Originating Summons and directed the Registrar of Titles to register "458 Welfare Group" or its officials as absolute proprietors of the plot free from encumbrances, with the Plaintiffs to bear their own costs.

Key legal issues

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01

Whether the Plaintiffs had acquired title by adverse possession

Holding

Yes - the Plaintiffs proved continuous, exclusive and peaceful occupation exceeding 12 years, entitling them to be registered as proprietors in place of the registered owner.

Reasoning

The Originating Summons proceeded to formal proof as the Defendant, though served by advertisement with the summons and hearing notice, neither entered appearance nor filed a replying affidavit. PW1 testified that he moved onto the empty land in 2000, built a house, and was joined by the other Plaintiffs; the property is now fully occupied. The registered proprietor's title, per the postal search, stood extinguished by operation of section 38 of the Limitation of Actions Act after 12 years of adverse possession.

p. 2

Legal principles established

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  • Section 38 of the Limitation of Actions Act allows a person to apply to the High Court for an order that he be registered as the proprietor of land in place of the person then registered where the person claims to have become entitled to such land by adverse possession.
  • Continuous, exclusive and peaceful occupation of land for a period exceeding 12 years establishes entitlement by adverse possession on a balance of probabilities.

Court orders

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  1. 1.The Registrar of Titles, Coast Registration District be and is hereby directed to register "458 Welfare Group" or its officials as the absolute proprietors of plot number 458/I/MN (CR. No. 16333) free from all other encumbrances.
  2. 2.The Plaintiffs to bear their own costs.

Authorities

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Legislation

  • Limitation of Actions Actsection 38
  • Civil Procedure RulesOrder 37 Rule 7
Jurisdiction invoked
Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules

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, "Ngowa & 2 others (Suing on behalf of members of 458 Welfare Group) v Viable Properties Kenya Limited (Enviromental and Land Originating Summons 235 of 2015) [2016] KEELC 1302 (KLR)", Case Analysis (2016). Originating Summons dated September 15, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1302/eng@2016-04-12

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