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ELCDismissedELC Civil Case No 131 of 2015 (OS)· [2018] KEELC 1223 (KLR)

Lydia Shimuli Muyeyeli v Fanuel Opana Ochiel & 2 others [2018] KEELC 1223 (KLR)

Environment and Land Court
5 October 2018
LKL. Komingoi
1,174 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Mombasa court dismissed a woman's claim to own land she had occupied since 2002 because she had entered as a paying tenant.

What this practically means

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Executive summary

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The plaintiff brought an originating summons under Order 37 rule 7 of the Civil Procedure Rules and Sections 7, 37 and 38 of the Limitation of Actions Act seeking a declaration that she had acquired 0.0242 hectares of Plot No 1202/II/MN (Original No 53/194) Section II Mainland North, Mombasa by adverse possession, together with an order for registration as owner and issuance of a title, and costs. The 1st and 2nd defendants did not enter appearance; the 3rd defendant, Housing Finance Company of Kenya Limited, entered appearance, filed a replying affidavit sworn by its West Regional Manager, and tendered written submissions without calling witnesses. Directions were taken for the suit to proceed by viva voce evidence. The plaintiff testified that she entered the premises in 2002 as a tenant of the 1st defendant, paid rent through an advocate's office, undertook repairs with permission, and had not seen the 1st defendant since 2003. The court applied Kasuve vs Mwaani Limited and the nec vi, nec clam, nec precario standard in Francis Gicharu Kariri vs Peter Njoroge Mairu approving Kimani Ruchere vs Swift Rutherfords. It found that the plaintiff entered with permission as a tenant, admitted paying rent through an advocate's office without proving when rent ceased, and thus failed to prove open, exclusive possession as of right for over twelve years. The claim for adverse possession, registration and declaration was dismissed with costs to the 3rd defendant.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession

Holding

The claim failed; the plaintiff entered as a tenant with permission and did not prove the requisite adverse possession

Reasoning

The court found as an undisputed fact that the plaintiff entered the suit premises as a tenant with the 1st defendant's permission and paid rent through an advocate's office, undertaking repairs with permission. Entry with permission negates adversity of possession. She also could not establish when rent stopped, undermining proof of continuous, hostile possession for over 12 years.

p. 2
02

Whether the plaintiff has any claim against the 3rd defendant

Holding

The plaintiff has no claim against the 3rd defendant

Reasoning

The court adopted the 3rd defendant's submissions, against which no evidence was led, and agreed that no claim was established against it.

p. 2

Legal principles established

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  • A claimant to land by adverse possession must prove exclusive, open possession as of right, without interruption for 12 years, either by dispossessing the owner or through discontinuation of possession by the owner
  • Possession claimed as of right must be nec vi, nec clam, nec precario and continuous, with the owner having actual or constructive knowledge of it

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the 3rd defendant/respondent
Jurisdiction invoked
Order 37 rule 7(1)(2) and (3) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Sections 7, 37 and 38 of the Limitation of Actions Act

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, "Lydia Shimuli Muyeyeli v Fanuel Opana Ochiel & 2 others [2018] KEELC 1223 (KLR)", Case Analysis (2018). ELC Civil Case No 131 of 2015 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1223/eng@2018-10-05

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