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ELCPartially AllowedOriginating Summons dated 1/02/2016 (ELC)· [2018] KEELC 1671 (KLR)

Rajab Nandwa Akida & another v Patricia Mary Davidson [2018] KEELC 1671 (KLR)

Environment and Land Court
21 September 2018
BEB M Eboso
1,223 words in judgment
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The bottom line

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A Nairobi court handed two families full ownership of land they had occupied openly and peacefully since 1997, proving 12+ years of adverse possession.

What this practically means

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Executive summary

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The plaintiffs, Rajab Nandwa Akida and Nesiri Peter Muia, brought an originating summons by way of originating notice of motion seeking declarations that they had acquired title to L.R Number 7741/7669 (original No 7741/63/2) by adverse possession, that the registered defendant held it in trust for them, cancellation and transfer of the title, execution of a transfer by the defendant or, in default, by the Deputy Registrar, and an injunction restraining the defendant from interfering with their possession. The defendant entered appearance but filed no replying affidavit or defence; after service by newspaper notice ordered by the court, she did not respond and no evidence was tendered at the trial. Both plaintiffs testified that they had occupied the land with their families since 1997, farming it and erecting temporary and permanent structures, without permission, force or fraud, and without any interruption or claim by the registered owner. Counsel submitted that under Section 7 of the Limitation of Actions Act the registered owner's title was extinguished after 12 years of dispossession, relying on four decisions outlining the conditions for perfecting title by adverse possession. The court framed a single issue: whether the plaintiffs had satisfied the criteria for acquisition of title under the doctrine of adverse possession. Finding the averments uncontroverted and the evidence of uninterrupted possession since 1997 unchallenged, the court held the criteria met and granted the orders sought as prayed, with one variation: the vesting instruments were to be executed by the Deputy Registrar of the Environment and Land Court rather than the Deputy Registrar of the High Court. Judgment was delivered at Nairobi on 21 September 2018 by B M Eboso J.

Key legal issues

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01

Whether the plaintiffs acquired title to the suit property by adverse possession

Holding

Yes - having been in open, peaceful and uninterrupted possession since 1997 without the defendant's consent, force or fraud, the plaintiffs met the criteria and title vested in them

Reasoning

The summons was unopposed; the defendant filed no replying affidavit or defence and tendered no evidence. The plaintiffs testified that they had occupied the suit property with their families since 1997, farming on it and making substantial improvements without interruption or any claim by the registered owner. The court found the averments uncontroverted and held that over 12 years' unchallenged possession extinguished the defendant's title under Section 7 of the Limitation of Actions Act.

p. 2

Legal principles established

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  • Uncontroverted evidence of uninterrupted and unchallenged possession for over 12 years satisfies the criteria for acquisition of title by adverse possession
  • A registered owner's title is extinguished after 12 years of adverse possession under Section 7 of the Limitation of Actions Act

Court orders

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  1. 1.A declaration that the plaintiffs are entitled to the entire title, possession, occupation and transfer of property L.R Number 7741/7669 (original No 7741/63/2) by adverse possession
  2. 2.A declaration that the property, if registered in the name of the defendant, is held in trust for the plaintiffs
  3. 3.Cancellation of the defendant's title and transfer of the property to the plaintiffs
  4. 4.An order that vesting instruments be executed by the Deputy Registrar of the Environment and Land Court (in substitution of the Deputy Registrar of the High Court as sought)
  5. 5.An order restraining the defendant from interfering with the plaintiffs' possession or dealing with the property

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38(1)
  • Civil Procedure Rules 2010Order 37 rule 7

Cases cited (4)

  • Francis Gicharu Kariri v Peter Njoroge Mairu & Anor
    Civil Appeal No 293 of 2002
  • John Muange Kithiokoi v Ernst Hjalmar Fridolf Andreberg & Anor
    ELC No 103 of 2012 (OS)
  • Samuel Nyakendo v Samuel Orcho Onyaru
    Civil Appeal No 24 of 2004
  • Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction under Order 37 rule 7 of the Civil Procedure Rules 2010 and Sections 7 and 38(1) of the Limitation of Actions Act (adverse possession claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rajab Nandwa Akida & another v Patricia Mary Davidson [2018] KEELC 1671 (KLR)", Case Analysis (2018). Originating Summons dated 1/02/2016 (ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1671/eng@2018-09-21

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