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ELCAllowedOriginating Summons dated 28th July, 2010· [2018] KEELC 1103 (KLR)

Jacinta Maria Kiilu v Pius Ngui Kiswili & another [2018] KEELC 1103 (KLR)

Environment and Land Court
26 October 2018
536 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court gave a woman title to 10.5 acres she had openly occupied since 1984, proving that long, peaceful occupation can defeat a registered owner.

What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons dated 28th July 2010 seeking a declaration that she was entitled by adverse possession to 10.5 acres of land comprised in title Mutonguni/Kauwi/1247, registered under the Registered Land Act (Cap 300) and situated in Kitui West District, together with an order that she be registered as absolute proprietor of that portion and costs. She contended she had enjoyed continuous, uninterrupted and peaceful occupation of the suit land since 1984 with the full knowledge of the Defendants, exceeding twelve years. The registered proprietor, the late Kiswili Nyile, was registered on 13th November 1989. The Defendants neither entered appearance nor filed a replying affidavit, and the suit proceeded by viva voce evidence. The Plaintiff testified and produced the Grant of Letters of Administration issued to the Defendants, a Certificate of Official Search showing the parcel measures 48.0 Ha, and several sale agreements between Kiilu Maingi and the Defendants over portions of the land. The court found the claim uncontroverted and held that the Plaintiff had proved occupation as of right, nec vi, nec clam, nec precario. Relying on section 38 of the Limitation of Actions Act, the court allowed the Originating Summons, declared the Plaintiff entitled by adverse possession to 10.5 acres, ordered that the 10.5 acres be excised from the parcel and registered in her name, and directed each party to bear their own costs.

Key legal issues

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01

Whether adverse possession was established against the registered proprietor

Holding

The court held that the Plaintiff proved adverse possession of 10.5 acres, having occupied the land since 1984 openly and without the registered proprietor's consent.

Reasoning

The Plaintiff testified that she took possession in 1984 and utilized 10.5 acres since then. The Defendants, though served, neither entered appearance nor filed a replying affidavit, so the claim was uncontroverted. Since the deceased was registered as proprietor on 13th November 1989 and the Plaintiff had been in occupation from 1984, the requisite twelve-year period had elapsed, and possession was as of right, without force, secrecy or permission.

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02

Whether the court could order registration of the Plaintiff as proprietor under section 38 of the Limitation of Actions Act

Holding

Yes. Section 38 permits a person entitled by adverse possession to registered land to apply for an order that he or she be registered in place of the registered proprietor, which is what the Plaintiff did and obtained.

Reasoning

The court invoked section 38 of the Limitation of Actions Act, which allows a person claiming to be entitled by adverse possession to land registered under the applicable statutes to apply to the High Court (ELC) for an order that he or she be registered as proprietor in place of the person then registered. The Plaintiff's Originating Summons was precisely such an application, and having proved entitlement, the court granted the declaratory and registration orders and directed excision of the 10.5 acres.

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Legal principles established

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  • A claimant who has been in open possession of registered land for over twelve years as of right, without force, secrecy or permission, acquires title by adverse possession and may apply under section 38 of the Limitation of Actions Act to be registered as proprietor.

Court orders

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  1. 1.The Plaintiff be and is hereby declared to be entitled by adverse possession to 10.5 acres of land comprised in a parcel of land known as Mutonguni/Kauwi/1247
  2. 2.10.5 acres to be excised from parcel of land known as Mutonguni/Kauwi/1247 and the same to be registered in the name of the Plaintiff
  3. 3.Each party to bear his/her own costs

Authorities

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Legislation

  • Registered Land ActChapter 300 Laws of Kenya
  • Limitation of Actions ActSection 38
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (adverse possession claim to registered land, heard by the ELC)

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, "Jacinta Maria Kiilu v Pius Ngui Kiswili & another [2018] KEELC 1103 (KLR)", Case Analysis (2018). Originating Summons dated 28th July, 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1103/eng@2018-10-26

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