Rashid Mohamed Salim (being the administrator of the Estate of Mgeni Khamis Abdalla & Amriya Khamisi Rashid ) v Ahmed Abdalla Bafadhil [2018] KEELC 1133 (KLR)
The bottom line
#A Kenyan court dismissed a family's land eviction claim and ruled that decades of open occupation gave the defendant ownership through adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved the pleaded trespass of October 2012
The Plaintiff failed to discharge the burden of proof; his evidence shifted from trespass to denial of access, and he conceded the Posho Mill was not shown to be on the suit property
The Plaintiff's pleaded case was that the Defendant trespassed in October 2012 and erected a Posho Mill. At trial, however, the Plaintiff changed his claim to one of denial of access between 2010 and 2012, and admitted under cross-examination that the Posho Mill was not on the suit property, being unable to ascertain its location without a survey. The court held the pleaded date and Posho Mill allegations were contrived to circumvent the Limitation of Actions Act. Relying on Dakianga Distributors, parties are bound by their pleadings.
Whether the Defendant proved his Counterclaim for adverse possession or a declaration of trust
The Counterclaim was allowed as prayed; the Defendant proved exclusive, continuous, open and uninterrupted possession of the suit property for several decades
The Defendant adduced evidence that his father purchased the suit property from the Plaintiff's grandmothers on 12th August 1958 and took possession, with the Defendant himself in sole possession since about 1971, building a concrete house, planting coconut trees, erecting a wall and operating a Posho Mill licensed since 1976. Four defence witnesses corroborated long occupation. The court found that if possession began in 1958, the suit to recover land was clearly time-barred under Section 7 of the Limitation of Actions Act, and the Defendant proved his Counterclaim on a balance of probabilities.
Effect of Section 16 of the Limitation of Actions Act on claims by administrators of deceased estates
An administrator claims as if there had been no interval between death and the grant of letters of administration, so time ran against the estate from the 1958 alleged possession
The court noted the Plaintiff sued as administrator of his grandmothers who died between 1956 and 1959. Section 16 of the Limitation of Actions Act deems an administrator to claim as if there had been no interval of time between death and the grant. Therefore, if the Defendant's father took possession in 1958, the right of action accrued then and the suit brought in 2014 to recover land was statute-barred.
Legal principles established
#- Parties are bound by their pleadings and a court cannot adjudicate on claims or defences not raised by the pleadings; the date of accrual of the cause of action determines whether a land claim is time-barred under Section 7 of the Limitation of Actions Act
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.The Defendant's Counterclaim is allowed as prayed
- 3.The Defendant shall have both the costs of the Plaintiff's suit and the Counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property (Plot No. 1513/384 CR 12739/1 Takaungu) and the Defendant's Counterclaim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rashid Mohamed Salim (being the administrator of the Estate of Mgeni Khamis Abdalla & Amriya Khamisi Rashid ) v Ahmed Abdalla Bafadhil [2018] KEELC 1133 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1133/eng@2018-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.