Fatuma Mashaka v Batulbai w/o Badrudin Mulla Adamji Anjari [2018] KEELC 1754 (KLR)
The bottom line
#A Mombasa court declared a woman who lived on a Jomvu plot for over 40 years its rightful owner, extinguishing the registered owner's title through adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant acquired title by adverse possession
Yes - the Applicant proved open, peaceful and uninterrupted possession for over 40 years, exceeding the 12-year statutory period, so her title by adverse possession accrued and the Defendant's title stands extinguished
The court applied Kasuve v Mwaani Investments and Kimani Ruchere v Swift Rutherfords. The Applicant testified she had lived on the land since her marriage in the 1940s era, continuously, peacefully and without force or interruption, paying rates and rent. Her case was unchallenged - the Defendant, served by registered post and through diplomatic channels, did not appear or respond. The court found the nec vi, nec clam, nec precario standard satisfied.
Whether the Applicant should be registered as proprietor in place of the Defendant
Yes - the Defendant's ownership rights were extinguished and the Applicant is entitled to be registered as proprietor
Having found adverse possession established, the court invoked the extinguishment consequence under Sections 37 and 38 of the Limitation of Actions Act, issuing a declaration that the Defendant's ownership rights are extinguished and directing that the Applicant be registered as proprietor of the suit property through the relevant registrar.
Legal principles established
#- A claimant to land by adverse possession must prove exclusive, open possession as of right, without interruption, for 12 years
- Possession must be nec vi, nec clam, nec precario - without force, secrecy or persuasion - and continuous, with the registered owner having actual or constructive knowledge
Court orders
#- 1.A declaration that the Plaintiff/Applicant is entitled by way of adverse possession to be registered as the owner of the property known as Plot Number 227/Section V/Mainland North situated in Jomvu
- 2.That the ownership rights of Batulbai w/o Bandrudin Mulla Adamji Anjari are extinguished by virtue of the accrued right of adverse possession by the Plaintiff/Applicant
- 3.That the Plaintiff/Applicant is entitled to be registered as the proprietor of Plot Number 227/Section V/Mainland North situated in Jomvu
- 4.No orders as to costs
- Jurisdiction invoked
- Sections 37 and 38 of the Limitation of Actions Act (Chapter 22, Laws of Kenya), Section 3A and Order 63(e) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fatuma Mashaka v Batulbai w/o Badrudin Mulla Adamji Anjari [2018] KEELC 1754 (KLR)", Case Analysis (2018). Originating Summons (Mombasa) - MN/V/227 matter, dated 20th March 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1754/eng@2018-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.