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ELCPartially AllowedOriginating Summons dated 16th August, 2013 (amended 3rd October, 2013)· [2017] KEELC 2963 (KLR)

Jonathan Matano Mweni v Kazungu Muthengi & 3 others [2017] KEELC 2963 (KLR)

Environment and Land Court
12 May 2017
3,421 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Malindi court declared that someone who openly occupied land for 12+ years owns it, even where the original sale collapsed for lack of Land Control Board consent.

What this practically means

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Executive summary

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The Applicant brought an Originating Summons dated 16th August 2013 claiming to be entitled to land parcel Mijomboni/615 by adverse possession, having lived and worked on it for over 15 years. The 1st Respondent deponed that he sold the land in 1990 to Morosseti Inago on behalf of his foster child, the 2nd Respondent, and transferred it to the 2nd Respondent in 2011; the 2nd Respondent sold to the 3rd Respondent in 2012. The Respondents contended the Applicant was a caretaker permitted to live on the land, so his possession was not adverse, and that the Applicant failed to annex a certificate of title to his Supporting Affidavit contrary to Order 37 Rule 7(2). The court held that non-annexation of the certified extract was not fatal since the green card was produced in evidence. It found that the agreement between the 1st Respondent and Morosseti became null and void after six months for want of Land Control Board consent under Section 8 of the Land Control Act; the 1st Respondent was entitled to repossess but never did. The Applicant remained in open, continuous, exclusive and hostile occupation, and the 1st Respondent's right to recover lapsed in 2002. The 2nd Respondent did not testify and failed to prove he was Morosseti's foster son. The court found adverse possession proved on a balance of probabilities and allowed the amended Originating Summons, declaring the Applicant entitled to be registered as proprietor in place of the Respondents.

Key legal issues

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01

Whether adverse possession was established

Holding

Yes - the Applicant occupied the land as of right, continuously, exclusively, openly and hostile to the 1st Respondent's title from 1990, and the 1st Respondent's right to recover lapsed in 2002

Reasoning

The Applicant entered the land in 1990 when Morosseti bought it and remained in uninterrupted occupation, harvesting crops and grazing goats. The sale agreement to Morosseti lapsed after six months for want of Land Control Board consent under Section 8 of the Land Control Act. The 1st Respondent was entitled to repossess but did not, so the Applicant's possession became hostile to the registered title, and time ran until the right of recovery lapsed in 2002.

p. 6
02

Whether non-annexation of a certified extract of title was fatal

Holding

No - it sufficed that the green card was produced in evidence

Reasoning

Order 37 Rule 7(2) requires annexation of an extract of title, but the purpose is only to enable the court to ascertain the registered proprietor and compute the limitation period. Since the green card was produced in evidence and showed the chain of registrations, the Applicant substantially complied with the law and the omission was not fatal.

p. 5
03

Whether the 2nd Respondent was the foster son of Morosseti and entitled to the land

Holding

No - the 2nd Respondent did not testify and produced no evidence of adoption or fostering

Reasoning

The 1st Respondent had no documents showing adoption of the 2nd Respondent by Morosseti, and the 2nd Respondent never testified. No succession proceedings over Morosseti's estate were filed. The claim that the land was bought for the foster child therefore remained unproven, and the transfer to the 2nd Respondent in 2011 could not defeat the accrued adverse possession.

p. 6

Legal principles established

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  • Failure to annex a certified extract of title to the supporting affidavit under Order 37 Rule 7(2) is not fatal where the extract is produced in evidence
  • A sale of agricultural land that is never completed with Land Control Board consent becomes null and void after six months, leaving the vendor entitled to repossess; if the vendor fails to do so, a claimant in open, continuous possession may accrue title by adverse possession

Court orders

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  1. 1.That the Applicant is entitled to be declared as proprietor of the land parcel known as Mijomboni/615 which he has acquired by adverse possession
  2. 2.That the Applicant is entitled to be registered and issued with a certificate of title over the said land in place of the Respondents

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Land Control ActSection 8
  • Civil Procedure RulesOrder 37 Rule 7(2)

Cases cited (1)

  • Kweyu vs. Omuto
    (1990) eKLR
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act and Civil Procedure Rules (Order 37) in a claim for adverse possession of registered land

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, "Jonathan Matano Mweni v Kazungu Muthengi & 3 others [2017] KEELC 2963 (KLR)", Case Analysis (2017). Originating Summons dated 16th August, 2013 (amended 3rd October, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2963/eng@2017-05-12

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