George Mukora Kabena & another v Martin Kalume Thoma [2017] KEELC 216 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs proved their claim for vacant possession and injunction on a balance of probabilities.
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.
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.
Whether the Defendant's counterclaim for adverse possession could succeed.
The counterclaim failed both for procedural non-compliance and on the merits.
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.
Legal principles established
#- 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
#- 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.The court declined to award any damages for trespass as no damage was proved.
- 3.Costs of the suit and interest awarded to the Plaintiffs.
- Jurisdiction invoked
- Original civil suit under the Environment and Land Court's jurisdiction (statute not specified in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.