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ELCPartially AllowedELC No. 104 of 2013· [2017] KEELC 2470 (KLR)

Abdulrazak Muhsin Shariff v Kadzo Masha Kazungu & another [2017] KEELC 2470 (KLR)

Environment and Land Court
13 July 2017
JOJ. O. Olola
1,183 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 confirmed that a 1994 government allotment letter plus receipts beats claims of inheritance or adverse possession, and granted a permanent injunction.

What this practically means

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Executive summary

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The Plaintiff sued the two Defendants for eviction from Plot No. 9313 in Malindi, Kilifi County, a permanent injunction, and damages for trespass, claiming to be the beneficial allotee of the land from the Government of Kenya. He alleged that on 10th June 2013 the Defendants entered the land without any colour of right and began constructing structures. The Defendants never filed a defence, though in a replying affidavit the 1st Defendant claimed the land belonged to and had always been occupied by the family of one Charo Wa Shutu, of which she was a member, founding entitlement on inheritance and/or adverse possession. Earlier in the suit, a contempt application led to the 1st Defendant being sentenced to three months' imprisonment for violating court orders, and a mandatory injunction directed the Defendants to demolish the structures, which was complied with. At the hearing on 21st February 2017 neither Defendant nor their counsel attended; the Plaintiff testified unchallenged, producing a Letter of Offer of Allotment dated 4th August 1994 from the Commissioner of Lands, receipts totalling Kshs 27,704/=, and Deed Plan No. 188990. The court held the Plaintiff beneficially entitled to the land, rejected the inheritance claim for want of Letters of Administration, and held that adverse possession cannot run against Government land, Sections 41 and 42 of the Limitation of Actions Act expressly excluding Government land, and that the Defendants had shown no occupation generating prescriptive rights. Judgment was entered for the Plaintiff with a permanent injunction and costs and interests; eviction and damages were not expressly granted, the structures having already been demolished under the earlier orders.

Key legal issues

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01

Plaintiff's beneficial ownership of Plot No. 9313

Holding

The Plaintiff proved allocation by the Government through a Letter of Offer of Allotment dated 4th August 1994, payment of Kshs 27,704/= to the Department of Lands, and issuance of Deed Plan No. 188990, establishing beneficial entitlement

Reasoning

The Plaintiff testified as an allotee and produced a Letter of Offer of Allotment from the Commissioner of Lands, receipts totalling Kshs 27,704/= paid on acceptance, and a Deed Plan No. 188990 issued 6th December 2012 converting Original Unsurveyed Residential Plot No. 4 Malindi into Plot No. 9313. His unchallenged and uncontroverted testimony stands as proof of title.

p. 2
02

Claim of title by inheritance and adverse possession

Holding

The Defendants' claim failed: no Letters of Administration supported the inheritance claim, and adverse possession cannot run against Government land

Reasoning

The Defendants asserted the land belonged to the Charo Wa Shutu family but produced no grant of Letters of Administration entitling them to pursue it on the family's behalf. Their adverse possession claim was untenable because Sections 41 and 42 of the Limitation of Actions Act exclude Government land, and they showed no occupation after the 1994 allocation that would ground prescriptive rights.

p. 2
03

Effect of Defendants' failure to attend hearing

Holding

The Defendants' absence meant their defence was unproven and the Plaintiff's unchallenged testimony carried the day

Reasoning

Neither the Defendants nor their counsel attended the hearing on 21st February 2017. Consequently no evidence was led to substantiate the defence of inheritance or adverse possession gleaned from earlier affidavits, and the Plaintiff was not cross-examined, leaving his testimony unchallenged.

p. 2

Legal principles established

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  • Time does not run in favour of a claimant in adverse possession against the Government; Sections 41 and 42 of the Limitation of Actions Act exclude Government Land from the Act's operation
  • A party who fails to lead evidence at hearing cannot rely on averments in affidavits to establish title

Court orders

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  1. 1.A permanent injunction restraining the Defendants, their servants, agents, employees or any person claiming through them from interfering in any way with the Plaintiff's use and enjoyment of Plot No. 9313, Malindi
  2. 2.Costs and interests of the suit to the Plaintiff

Authorities

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Legislation

  • Limitation of Actions ActSections 41 and 42
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes in Kilifi County (ELC No. 104 of 2013)

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, "Abdulrazak Muhsin Shariff v Kadzo Masha Kazungu & another [2017] KEELC 2470 (KLR)", Case Analysis (2017). ELC No. 104 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2470/eng@2017-07-13

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