Mtsonga Kabila Chiro & 4 others v John Simon Ken Mungai Gaitho & 6 others [2017] KEELC 359 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that land can still legally be claimed through adverse possession, and refused to strike out the claim.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality of adverse possession under Article 40 of the Constitution
The doctrine of adverse possession is not unconstitutional; absence of an express constitutional provision recognising it does not imply it has been outlawed
The court relied on its own earlier decision in Kahindi Ngala Mwagandi v Mtana Lewa and the Court of Appeal's detailed judgment in Mtana Lewa v Kahindi Ngala Mwagandi, where Makhandia, Ouko and M'Inoti JJA each held that acquisition of land by adverse possession is not arbitrary and that the limitation of property rights through adverse possession is reasonable and justifiable under Article 40. The 7th Defendant's contrary argument therefore did not arise.
Locus standi of the Plaintiffs and members of the Self Help Group
With written and signed authority annexed to the supporting Affidavit, locus standi cannot be challenged at an interlocutory stage
The 1st Plaintiff deponed that he had the authority of the Co-Plaintiffs and members of Barani Pole Pole Self Help Group and annexed a written, signed authority. The court held that whether that authority was indeed valid is a matter to be dealt with at trial, not on an application to strike out, so the interlocutory challenge failed.
Whether the Originating Summons is vexatious and an abuse of process
The application to strike out was dismissed; alleged deficiencies in the pleadings are trial matters
The 7th Defendant argued the Plaintiffs had not named the multiple Plaintiffs, revealed when they entered the land, or set out the nature of each Plaintiff's claim. The court held these questions of pleading and proof could only be dealt with at trial and did not warrant striking out the Originating Summons at an interlocutory stage.
Legal principles established
#- The doctrine of adverse possession, informed by Sections 7, 9, 13 and 38 of the Limitation of Actions Act, is not unconstitutional notwithstanding Article 40 of the Constitution
- Locus standi supported by written authority cannot be questioned at an interlocutory stage; it is a matter for trial
- Whether pleadings disclose where, why and how the Plaintiffs entered the suit land is a matter for trial, not summary striking out
Court orders
#- 1.The Application dated 21st June, 2016 is dismissed
- 2.Costs of the Application awarded to the Plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land claims (adverse possession), via Originating Summons
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mtsonga Kabila Chiro & 4 others v John Simon Ken Mungai Gaitho & 6 others [2017] KEELC 359 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/359/eng@2017-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.