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ELCPartially AllowedELC Case (Malindi) - suit filed 30th September 2010 (number not stated in judgment)· [2018] KEELC 2278 (KLR)

Mirza Ali Abdulrahman Mirza (suing as Administrator of Estate of Saleh Mirza v Reuben Mwadai & 2 others [2018] KEELC 2278 (KLR)

Environment and Land Court
31 July 2018
JOJ. O. Olola
2,927 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Two families who openly occupied land for decades without permission legally won 20 acres from the registered owner through adverse possession.

What this practically means

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Executive summary

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The Plaintiff, as administrator ad litem of the estate of Aziz Mohamed Abubakar Alamoody, registered owner of a half undivided share of Plot No. 223 Mambrui (approx. 152.5 acres, Title No. CR 14616), sued for vacant possession and eviction of the three Defendants, alleging trespass and unlawful sub-division and sale of portions. The Defendants denied the Plaintiff's locus standi, and the 1st and 2nd Defendants counterclaimed for a declaration of adverse possession, asserting they were born on the land and had occupied it openly for over 40 years, building houses, planting permanent trees and burying 11 relatives there. The 3rd Defendant was withdrawn from the suit by consent in 2016 with no order as to costs. The court framed two issues: the Plaintiff's locus standi and whether the Defendants had trespassed or acquired 20 acres by adverse possession. On the first, the court held that the Letters of Administration ad litem conferred standing and a duty to preserve the estate. On the second, applying the principles in Angus Walker Munro v Kilifi Plantations, the court found the Defendants' occupation was non-permissive, open and adverse, with time running from registration of the Certificate of Ownership on 16th July 1974, far exceeding 12 years before disputes arose around 2007. The Plaintiff's suit was dismissed, judgment entered for the 1st and 2nd Defendants declaring they had acquired 20 acres by adverse possession, and each party was ordered to bear their own costs.

Key legal issues

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01

Locus standi of the administrator ad litem

Holding

The Plaintiff had the necessary standing and capacity to institute and continue the suit

Reasoning

Letters of Administration ad litem were granted to the original plaintiff in 2007 and, after his death, to the substituted plaintiff in 2014. Under such grants the administrator has a legal obligation to protect and preserve the estate, which includes the suit property registered in the deceased's name. The Defendants' contention that the plaintiff was a mere busybody therefore failed.

p. 3
02

Whether the Defendants acquired adverse possession

Holding

The 1st and 2nd Defendants acquired 20 acres of Portion No. 223 Mambrui by adverse possession

Reasoning

The Defendants' occupation was long-standing, non-permissive, open and exclusive: they built houses, planted permanent trees and buried their father on the land. Registration of the Certificate of Ownership in 1974 was the date time began running, and no action to evict was taken until disputes arose around 2007, well beyond the statutory 12-year period.

p. 4
03

Commencement of limitation period

Holding

Time ran against the registered owner from the date of registration of the Certificate of Ownership

Reasoning

The Certificate of Ownership showed the land was registered as such on 16th July 1974, which the court took as the date when time started running against the plaintiff. Occupation from around 1967 far exceeded the statutory 12-year period by the time of the disputes in 2007.

p. 4

Legal principles established

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  • To succeed in adverse possession a claimant must prove physical entry and actual possession for 12 years, entry under claim or colour of right, non-permissive occupation, animus possidendi, and acts inconsistent with the owner's enjoyment
  • An administrator ad litem has the standing and capacity to protect and preserve the estate, including suing over registered property of the deceased

Court orders

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  1. 1.Plaintiff's suit dismissed
  2. 2.Judgment entered in favour of the 1st and 2nd Defendants on their counterclaim
  3. 3.A declaration issued that the 1st and 2nd Defendants have acquired by adverse possession a portion of land measuring 20 acres from all that parcel of land known as Portion No. 223 Mambrui, registered at the Coast Land Registry as Title No. CR 14616
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions Act (implied - 'statutory period of twelve (12) years')statutory period of 12 years

Cases cited (1)

  • Angus Walker Munro vs Kilifi Plantations Properties Ltd & Another
    Malindi ELC 173 of 2015 (unreported)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land (claim for eviction and counterclaim for adverse possession)

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, "Mirza Ali Abdulrahman Mirza (suing as Administrator of Estate of Saleh Mirza v Reuben Mwadai & 2 others [2018] KEELC 2278 (KLR)", Case Analysis (2018). ELC Case (Malindi) - suit filed 30th September 2010 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2278/eng@2018-07-31

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