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ELCAllowedNot stated in the judgment as provided· [2017] KEELC 2728 (KLR)

Annunciata Nthambi Mwongela & 2 others v William Abuka & 2 others [2017] KEELC 2728 (KLR)

Environment and Land Court of Kenya
12 June 2017
BEB. M. Eboso
1,153 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of the late Henry Mutie Mwongela, sued the Defendants claiming that around 2005 the Defendants and their agents invaded and trespassed onto Land Reference Number 209/12320, comprised in Grant Number IR 82498, registered in the deceased's name, and sought, among other reliefs, an order that the Defendants vacate. The 1st and 3rd Defendants denied trespass, questioned the Plaintiffs' capacity, and asserted that any occupation was under adverse possession; the 2nd Defendant filed no defence and none of the Defendants adduced evidence. The suit proceeded ex parte on 20/3/2017 after the court was satisfied that hearing notice had been served. The 1st Plaintiff testified and produced the letters of administration and certificate of confirmation of grant issued by the High Court in 2009, Grant IR 82498 in the deceased's name for a 99-year leasehold from 1/6/1994, a letter identifying officials of the Faith Community Care Centre, a restraining order issued in 2012, and photographs of makeshift structures on the land. The court held that property rights are protected under Article 40 of the Constitution and Sections 24 and 25(1) of the Land Registration Act, found the Plaintiffs' evidence uncontroverted, rejected the adverse possession defence for want of evidential support, and held that the Plaintiffs proved their case on a balance of probabilities. Judgment was entered for the Plaintiffs as prayed; the Defendants were ordered to vacate within 60 days, failing which an eviction order would issue under the supervision of the Area Officer Commanding Police Division.

Key legal issues

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01

Ownership and protection of the registered proprietor's title

Holding

The Plaintiffs proved that the deceased was the registered proprietor of the suit property and that their title is protected by Article 40 of the Constitution and Sections 24 and 25(1) of the Land Registration Act

Reasoning

The 1st Plaintiff produced the Grant IR 82498 registered in the deceased's name for a 99-year leasehold from 1/6/1994, together with the grant and confirmed letters of administration. The court held that property rights are protected under Article 40 and that Sections 24 and 25(1) of the Land Registration Act vest absolute ownership and indefeasibility in the registered proprietor. The evidence was uncontroverted.

p. 2
02

Trespass and the adverse possession defence

Holding

Trespass was proved against the Defendants on a balance of probabilities; the adverse possession defence failed for want of evidence

Reasoning

The Defendants, who filed a defence but did not adduce evidence, denied trespass and asserted that third parties occupied the land under adverse possession. The court found the Plaintiffs' evidence of invasion and erection of makeshift structures uncontroverted, and found that the Defendants produced no evidence supporting the adverse possession claim, so the Plaintiffs' case stood proved.

p. 3

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person under the Land Registration Act
  • A proprietor's rights are indefeasible except as provided in the Land Registration Act
  • A party asserting adverse possession must adduce evidence to support that defence

Court orders

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  1. 1.Judgment entered in favour of the Plaintiffs as prayed in the Plaint
  2. 2.The Defendants shall vacate the suit property, Land Reference Number 209/12320 comprised in Grant Number IR 82498, within 60 days
  3. 3.In default of vacating, an eviction order shall issue and the eviction shall be carried out under the supervision of the Area Officer Commanding Police Division
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (trespass and title to Land Reference Number 209/12320)

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, "Annunciata Nthambi Mwongela & 2 others v William Abuka & 2 others [2017] KEELC 2728 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2728/eng@2017-06-12

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