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ELCPartially Allowed· [2017] KEELC 216 (KLR)

George Mukora Kabena & another v Martin Kalume Thoma [2017] KEELC 216 (KLR)

Environment and Land Court
19 December 2017
2,108 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 Plaintiffs, holding a power of attorney from Joseph Wamuturi Kigathi (registered proprietor of Kwale/Diani Beach Block 1782, 1784, 1785, 1786 and 1787, subdivided from parcel 672), sued the Defendant for a mandatory injunction to demolish structures on the suit property, vacant possession, and general damages for trespass. The Defendant denied the claims and filed a counterclaim asserting title by adverse possession under the Limitation of Actions Act, contending his interest in the original parcel had extinguished the registered owners' titles. Three witnesses for the Plaintiffs proved the sale of parcel 672 by Alfred Mwaniki Ndungongi to Kigathi, the subsequent subdivision, and an agreement under which the Defendant agreed to vacate upon payment of Kshs.100,000, which was paid (partly via Mpesa by Ndungongi) and witnessed by the assistant chief. The Defendant admitted signing the agreement but alleged duress without calling any witness. The court found the Plaintiffs had proved their case on a balance of probabilities, holding that the burden lay on the Defendant to show the transfer was un-procedural or illegal. The counterclaim failed because adverse possession claims must be brought by originating summons under Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, and the Defendant neither complied nor proved 12 years of exclusive possession. Judgment was entered for the Plaintiffs with a mandatory injunction and vacant possession; damages for trespass were refused for want of proof, and costs with interest were awarded to the Plaintiffs.

Key legal issues

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01

Whether the Plaintiffs proved their claim for vacant possession and injunction on a balance of probabilities.

Holding

The Plaintiffs proved their case; the Defendant accepted Kshs.100,000 and signed an agreement to vacate willingly, and the titles held by Joseph Wamuturi Kigathi were unchallenged.

Reasoning

The Plaintiffs produced the power of attorney, titles, the sale agreements and the agreement to vacate witnessed before the assistant chief. The Defendant admitted signing the agreement but alleged duress without calling any witness. The court found the Defendant accepted the money because he had no claim to the land, and the burden was on the Defendant to show the transfer to Kigathi was un-procedural or illegal, which he failed to discharge.

p. 3
02

Whether the Defendant's counterclaim for adverse possession could succeed.

Holding

The counterclaim failed both for procedural non-compliance and on the merits.

Reasoning

Under Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, an adverse possession claim must be brought by originating summons with a certified extract of title annexed; the Defendant brought it by counterclaim without compliance. On the merits, he failed to prove 12 years of exclusive, open and uninterrupted possession, calling no witness to confirm occupation for over twelve years.

p. 3

Legal principles established

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  • A claim for adverse possession must be brought by originating summons under Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, with a certified extract of title annexed.
  • To be entitled to land by adverse possession the claimant must prove exclusive, open, uninterrupted possession as of right for 12 years.

Court orders

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  1. 1.A mandatory injunction compelling the Defendant to demolish, pull down the structures erected on the suit property and to give vacant possession to the Plaintiffs.
  2. 2.The court declined to award any damages for trespass as no damage was proved.
  3. 3.Costs of the suit and interest awarded to the Plaintiffs.

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure Rules, 2010Order 37 Rule 7
  • Land Registration ActNot specified

Cases cited (1)

  • Kasuve –versus- Mwaani Investments Limited and 4 Others
    (2004) eKLR 184
Jurisdiction invoked
Original civil suit under the Environment and Land Court's jurisdiction (statute not specified in the judgment)

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, "George Mukora Kabena & another v Martin Kalume Thoma [2017] KEELC 216 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/216/eng@2017-12-19

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