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ELCPartially AllowedMalindi ELC (consolidated with Malindi ELC No. 33 of 2009 (O.S))· [2017] KEELC 903 (KLR)

John Kamande Mwaniki & another v Festus Katana Kambi Nyabu & another [2017] KEELC 903 (KLR)

Environment and Land Court
15 November 2017
OAO.A. ANGOTEJOJ.O. OLOLA
3,530 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court ruled that 149 families did not prove twelve years of continuous occupation, so the registered owner keeps the land.

What this practically means

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Executive summary

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This consolidated first-instance Environment and Land Court matter at Malindi concerned plot number 554, Mtangani, measuring approximately 72.77 acres, which the Plaintiffs purchased in 1987 from the Fidahussein family for Kshs. 145,540. The Plaintiffs, advised by the area Chief, compensated 24 people for cashew nut and mango trees, relocated five squatter families to plots 7896, 7897, 7900 and 7901 (four acres set aside), sub-divided the land into 324 plots later consolidated to 84, and sold portions to third parties. The Defendants, comprising 149 Applicants in an Originating Summons dated 6th April 2009 in Civil Suit No. 33 of 2009, claimed entitlement to the land by adverse possession, asserting occupation since the 1950s; the Defendants also pleaded limitation against the Plaintiffs' suit filed on 15th October 2012. Only three Applicants testified. The court, after a locus quo visit on 6th November 2015, found that the Applicants' homesteads lay about 300 metres outside the land, that they only periodically cultivated it and retreated home, that no sketch map or pleadings identified the specific portions claimed, and that possession was interrupted by police in 2009. Applying Wilson Kazungu Katana and Robert Shume, the court held that transient and periodic cultivation is not hostile possession and that a claim pleading only 'respective portions' is ungrantable for indeterminacy. The Plaintiffs' Plaint was allowed as prayed and the Originating Summons dismissed with costs.

Key legal issues

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01

Proof of adverse possession of a defined portion

Holding

The Defendants/Applicants failed to prove twelve years' possession of any specific portion of the suit land

Reasoning

Only three of the 149 Applicants testified; none showed a house within the original portion 554, their homesteads being about 300 metres away. No sketch map or pleading identified the portions claimed. The court's locus quo visit found the land largely uninhabited save for overgrown trees, with new settlements on the southern side from 2009 and 2011.

p. 6
02

Cultivation as hostile possession

Holding

Periodic cultivation followed by return to homesteads outside the land does not amount to adverse possession

Reasoning

Relying on the Court of Appeal in Robert Shume & 3 others vs. Samson Kazungu Kalama, transient and periodic cultivation is not hostile to the true owner's title. DW1 and DW2 admitted cultivating and retreating to homes about 300 metres outside the beacons, and the possession was interrupted by police in 2009.

p. 7
03

Indeterminacy of claimants and entitlements

Holding

The court cannot determine which of the 149 Applicants occupies or is entitled to which portion, making the claim ungrantable

Reasoning

Following Wilson Kazungu Katana, courts are loath to issue orders certain to cause fresh friction among claimants. No evidence showed the relationship among the 149 Applicants or how each utilized the land for twelve years. The five squatter families recognized by the Plaintiffs were compensated and relocated to plots 7896, 7897, 7900 and 7901.

p. 7

Legal principles established

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  • A claimant for adverse possession must specifically prove the date of taking possession, actual possession, knowledge of the true owner, openness and non-interruption of possession for twelve years
  • Transient and periodic cultivation is not hostile possession capable of founding adverse possession
  • A claimant pleading 'respective portions' of a parcel must plead and prove the specific portions claimed; courts will not issue orders certain to cause friction among unidentified claimants

Court orders

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  1. 1.The Plaintiffs' Plaint dated 15th October, 2012 is allowed as prayed
  2. 2.The Applicants' Originating Summons dated 6th April, 2009 in Civil Suit No. 33 of 2009 is dismissed
  3. 3.Costs awarded to the Plaintiffs

Authorities

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Legislation

  • Limitation of Actions Acttwelve (12) years statutory period for adverse possession (as pleaded and applied)

Cases cited (2)

  • Wilson Kazungu Katana & 101 others vs. Salim Abdalla Bakshwein & Another
    Malindi Civil Appeal No. 11 of 2014 [2015] eKLR
  • Robert Shume & 3 others vs. Samson Kazungu Kalama
    Malindi Civil Appeal No. 32 of 2015 [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (ELC), suit consolidated with Malindi ELC No. 33 of 2009 (O.S)

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, "John Kamande Mwaniki & another v Festus Katana Kambi Nyabu & another [2017] KEELC 903 (KLR)", Case Analysis (2017). Malindi ELC (consolidated with Malindi ELC No. 33 of 2009 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/903/eng@2017-11-15

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