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ELCDismissedOriginating Summons dated 13th August, 2009· [2017] KEELC 3193 (KLR)

Musa Musyimi & 3 Others v Martin Mati Mulinge & another (sued in their capacity as legal Representative of the Estate of Mulewa Mulinge [2017] KEELC 3193 (KLR)

Environment and Land Court
17 March 2017
5,091 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Machakos dismissed a family's adverse possession claim because they couldn't prove they had openly occupied the land for twelve years.

What this practically means

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Executive summary

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The Plaintiffs, cousins of the Defendants, filed an Originating Summons on 13th August 2009 seeking a declaration that they are entitled to parcel Muputi/Kiima-Kimwe/526 by adverse possession. They claimed the land belonged to their great-grandfather Kimenye Mati, was fraudulently registered in 1977 in the name of the Defendants' mother, Mulewa Mulinge, and that they had occupied it since 1978, building permanent houses. The Defendants, the deceased's legal representatives, denied the occupation, asserting the Plaintiffs lived on ancestral plot 669 and that their mother had trespassed in 1994. They relied on Machakos HCCC No. 181 of 1998, in which Mwera J allowed the Defendants' mother's claim for eviction and dismissed the Plaintiffs' mother's counter-claim of adverse possession. At the hearing, the 1st and 2nd Plaintiffs, who swore the supporting affidavit, did not testify. PW1's evidence that his brothers had lived on the land since birth was undermined by admissions that they settled on plot 669, where their father was also buried. The court held that adverse possession rests on facts which must be pleaded and proved, and that the Plaintiffs failed to prove the precise period of occupation by clear and unequivocal evidence. It found the Plaintiffs always lived on plot 669 and only moved onto the suit land in 2008 after their mother's death. The Originating Summons was dismissed with costs.

Key legal issues

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01

Whether the Plaintiffs proved continuous, open and exclusive occupation of the suit land for over twelve years

Holding

They did not; the evidence showed the Plaintiffs lived on ancestral plot 669 and only moved onto the suit land in 2008 after their mother's death

Reasoning

The 1st and 2nd Plaintiffs, who swore the supporting affidavit claiming occupation since 1978, never testified. PW1's claim that his brothers were born and lived on the land from 1948/1949 was contradicted by admissions that they settled on plot 669. Their father was buried on plot 669, showing the family settled there. The prior judgment in HCCC No. 181 of 1998 had already found against their mother on adverse possession.

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02

Whether the prior judgment in Machakos HCCC No. 181 of 1998 bars the Plaintiffs' claim

Holding

The High Court had dismissed the mother's counter-claim of adverse possession and ordered her eviction; the Plaintiffs, who would have been living with her if the claim were true, cannot now claim the land as of right

Reasoning

Mwera J found the mother had not established adverse possession and ordered eviction. The Plaintiffs were adults at the time but neither sued nor sought joinder, indicating they were not living on the land. If their claim is through inheritance, the court has decreed the land belongs to the Defendants' mother.

p. 9

Legal principles established

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  • Adverse possession is the non-permissive physical control over land coupled with intention, by a stranger, in opposition to and exclusion of the true owner for more than twelve years
  • The plea of adverse possession is based on facts which must be asserted, pleaded and proved
  • The claimant must show the date possession was taken, the nature of possession, its duration and that it was open and undisturbed for the statutory period

Court orders

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  1. 1.Dismissal of the Originating Summons dated 13th August, 2009
  2. 2.Costs of the suit to the Defendants

Authorities

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Cases cited (1)

  • Ithongo v. Thindiu
    (1981) KLR 197
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (Originating Summons for adverse possession)

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, "Musa Musyimi & 3 Others v Martin Mati Mulinge & another (sued in their capacity as legal Representative of the Estate of Mulewa Mulinge [2017] KEELC 3193 (KLR)", Case Analysis (2017). Originating Summons dated 13th August, 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3193/eng@2017-03-17

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