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ELCAllowedELC Case No. 259 (O.S) of 2012· [2017] KEELC 2325 (KLR)

Anzwan M Salim & 3 others v Ahmed Ali Said & 2 others [2017] KEELC 2325 (KLR)

Environment and Land Court
4 April 2017
CYC. Yano
1,197 words in judgment
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The bottom line

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A Mombasa court gave families ownership of land they had openly occupied for 25 years, confirming that long, undisputed possession in Kenya can defeat a registered title.

What this practically means

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Executive summary

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The plaintiffs, by Originating Summons filed on 13th November 2012 in the Environment and Land Court at Mombasa, claimed the suit property - sub-division number 244 of section II Mainland North, Mombasa (CR 1218/1), measuring about 14.6 acres - by adverse possession. They deponed that they and their families had occupied the land openly, exclusively and without interruption for over 25 years, constructing permanent and temporary houses, shops, schools and playgrounds and cultivating crops, without anyone claiming ownership. They learned of the registered owners only after a radio announcement by the Municipal Council about auctioning plots for unpaid rates prompted a registry search. The defendants were served by advertisement in the Standard Newspaper, entered no appearance, and the suit was undefended, proceeding by affidavit evidence and written submissions. The court outlined the settled requirements of adverse possession, drawing on Wambugu v Njuguna, Mbira v Gachuhi, Jandu v Kirplal, Mtana Lewa v Kahindi Ngala Mwagandi and Parklands Properties Ltd v Patel: continuous and uninterrupted possession for 12 years or more, open and notorious to the owner, without permission, and with a hostile title asserted. Finding no evidence contradicting the plaintiffs' averments, and noting the vast developments inconsistent with anything but open occupation, the court held the plaintiffs had proved their case on a balance of probability. The Originating Summons was allowed in terms of prayers 2, 3, 4, 5 and 6, extinguishing the defendants' title, with costs to the plaintiffs. Judgment was delivered on 4th April 2017 by C. Yano, J.

Key legal issues

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01

Whether the plaintiffs proved a claim of adverse possession over the suit property

Holding

The plaintiffs proved their case on a balance of probability and brought themselves within the doctrine of adverse possession, having been in open, continuous and uninterrupted occupation for over 25 years without contradiction.

Reasoning

The plaintiffs deponed that they had occupied the suit land for over 25 years, developing it with permanent and temporary structures, shops, schools and playgrounds, and cultivating crops. Photographs of the developments were produced. Service was effected by newspaper advertisement; the defendants entered no appearance and adduced no evidence contradicting the plaintiffs' averments. Applying the settled requirements of adverse possession, the court found the elements proved on a balance of probability and allowed the Originating Summons.

p. 3

Legal principles established

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  • Adverse possession contemplates two concepts: dispossession and discontinuance of possession
  • A claimant seeking title by adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption
  • Whether possession is adverse is a matter of evidence depending on whether the particulars of adverse possession pleaded are established

Court orders

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  1. 1.The defendants' title to the suit property is extinguished by virtue of adverse possession
  2. 2.The Originating Summons filed on 13th November 2012 is allowed in terms of prayers 2, 3, 4, 5 and 6 thereof
  3. 3.Costs of the suit awarded to the plaintiffs

Authorities

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Cases cited (5)

  • Wambugu vs Njuguna
    1983 (KLR) 173
  • Mbira vs Gachuhi
    (2002) 1EALR 137
  • Jandu vs Kirplal and Another
    (1975) EA 225
  • Mtana Lewa vs Kahindi Ngala Mwagandi
    (2015) eKLR
  • Parklands Properties Ltd vs Patel
    (1981) KLR 52
Jurisdiction invoked
Environment and Land Court jurisdiction over claims of adverse possession relating to land registered in the Land Titles Registry at Mombasa

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Anzwan M Salim & 3 others v Ahmed Ali Said & 2 others [2017] KEELC 2325 (KLR)", Case Analysis (2017). ELC Case No. 259 (O.S) of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2325/eng@2017-04-04

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