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ELCAllowedELC Civil Suit No. 373 of 2017 (OS)· [2018] KEELC 1411 (KLR)

Alfan Mzee Alfani Alfani v Levi Karani [2018] KEELC 1411 (KLR)

Environment and Land Court
17 October 2018
AOA. Omollo
721 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ruled that 30 years of openly living on someone's registered land gave the occupant legal ownership under Kenya's adverse possession law.

What this practically means

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Executive summary

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The plaintiff, Alfan Mzee Alfani Alfani, filed an originating summons dated 13 October 2017 in the Environment and Land Court at Mombasa seeking a declaration that the defendant's interest in Plot Title No. C.R 7172/294 Subdivision No. 699/III/MN measuring 0.7800 ha had been extinguished, an order directing the Registrar of Titles, Mombasa to delete the defendant's entry and register the plaintiff as proprietor, and issuance of a certificate of title in his name, on the basis of adverse possession. Leave was granted on 21 November 2017 for service by advertisement, and the summons was served by advertisement in the Standard newspaper on 15 February 2018. The defendant did not enter appearance despite service. At the hearing on 10 July 2018 the plaintiff testified that he had lived on the land for over 30 years with his family, including his married son, and produced a copy of the certificate of title. The court noted the title showed the land was registered in the defendant's name on 23 March 1989, and that the plaintiff's uncontested evidence established more than 30 years of occupation, from which it inferred that the plaintiff had dispossessed the registered owner of the use of the land. The court held that the registered owner's interests had been extinguished by operation of section 17 of the Limitation of Actions Act. The court granted the orders sought, including registration of the plaintiff as owner and issuance of a certificate of title, conditional on the title still bearing the defendant's name. The plaintiff was ordered to bear the costs of the summons.

Key legal issues

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01

Whether adverse possession was established

Holding

The plaintiff proved adverse possession; the defendant's interest was extinguished by section 17 of the Limitation of Actions Act and the plaintiff was entitled to be registered as owner

Reasoning

The certificate of title showed the land was registered in the defendant's name on 23rd March 1989. The plaintiff gave unchallenged evidence that he had lived on the land with his family for over 30 years. The court drew the inference that he had dispossessed the registered owner of the use of the land, extinguishing the owner's interest by operation of section 17 of the Limitation of Actions Act. The claim was uncontested as the defendant, though served by advertisement, did not enter appearance.

p. 1

Legal principles established

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  • Where a plaintiff lives on land openly and without interruption for the limitation period, the interests of the registered owner are extinguished by operation of section 17 of the Limitation of Actions Act

Court orders

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  1. 1.Declaration that the Respondent Levi Karani's interest in title No CR 7172/294 Subdivision No 699/III/MN has been extinguished
  2. 2.That the Applicant Alfani Mzee Alfani be registered as owner of the suit land Subdivision No 699/III/MN in place of Levi Karani by virtue of adverse possession
  3. 3.The Registrar of titles Mombasa to register the Applicant in place of Levi Karani and issue him a certificate of title in respect of C.R 7172/294 Sub-division No 699/III/MN measuring 0.7800 ha
  4. 4.The costs of the summons to be borne by the plaintiff
  5. 5.Orders to be effective only if the title still bears the names of Levi Karani as defendant

Authorities

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Legislation

  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 38(2)
Jurisdiction invoked
Environment and Land Court jurisdiction over land claims; suit brought by originating summons under Section 38 of the Limitation of Actions Act (Cap 22)

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, "Alfan Mzee Alfani Alfani v Levi Karani [2018] KEELC 1411 (KLR)", Case Analysis (2018). ELC Civil Suit No. 373 of 2017 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1411/eng@2018-10-17

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