Mugerwa Katana Fundi & 40 others v Ali Swaleh Ali & another [2018] KEELC 2858 (KLR)
The bottom line
#The Malindi court threw out a 24-year adverse possession claim because the occupants couldn't prove continuous, hostile occupation or identify exactly which land they claimed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiffs have acquired title to Land Portion No. 5470 by adverse possession having occupied it for over 12 years
- 2.Whether the power of attorney under which the Interested Party filed the Defence and Counterclaim was validly executed
- 3.Whether the Plaintiffs identified with precision the specific portions of the suit land in their actual possession
- 4.Whether the Defence and Counterclaim by the 2nd Defendant and Interested Party should be allowed
Key legal issues
#Whether the Plaintiffs established adverse possession for the statutory 12-year period
The Plaintiffs failed to prove continuous, uninterrupted and adverse possession; their occupation was interrupted and in part permissive
Although some Plaintiffs appeared to have lived on the land for over 12 years, the 2012 meeting at the District Officer's office showed the Interested Party asserting rights of entry, interrupting possession. The 3rd Plaintiff's stay was with the 2nd Defendant's permission and thus not adverse. The court found the Plaintiffs insincere, noting a pattern of similar adverse possession claims against other properties.
Whether the general prayer for the entire parcel could succeed where only portions were occupied
The prayer was misconceived as the Plaintiffs did not delineate their specific portions and others also occupied the land
The prayer was never amended even after 38 of the 41 original Plaintiffs withdrew. The remaining Plaintiffs conceded other family members and purchasers from the Interested Party occupied the same parcel. Without a survey or report identifying the specific portions held by each claimant, the court could not order registration of the whole parcel, applying Samuel Katana Nzunga.
Validity of the power of attorney donated to the Interested Party
Despite the drafting advocate denying preparing it, the power of attorney was accepted as validly executed and registered
The 2nd Defendant did not deny donating the power of attorney or that the signature was his, and the document was duly registered at the Land Registry in Mombasa. Additionally, the Interested Party had been properly enjoined by a court order of 28th July 2014, and the 2nd Defendant himself testified defending the claim.
Legal principles established
#- Adverse possession requires actual, open, hostile and continuous possession to the exclusion of the true owner for the statutory period of 12 years; time runs when the true owner ceases to be in possession
- A claimant in adverse possession must specifically identify the portion of land claimed; a general claim over an entire parcel shared with others is misconceived
- Possession enjoyed with the permission of the registered owner is not adverse and cannot found a claim for adverse possession
Court orders
#- 1.Dismissal of the Plaintiffs' Originating Summons
- 2.Allowance of the Counterclaim in terms of prayers (a), (b) and (c) - permanent injunction against the Plaintiffs, vacant possession, and demolition of constructions/uprooting of crops
- 3.The order for vacant possession to take effect upon expiry of 90 days from the date of judgment, conditional upon the Plaintiffs keeping the peace and refraining from putting up new structures or dealing with the suit property
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 38(1) of the Limitation of Actions Act, Cap 22 - application to the High Court for an order that a person entitled by adverse possession be registered as proprietor
Relief refused
#Declaration that the Plaintiffs are entitled to be registered as proprietors of Land Portion No. 5470 by adverse possession
The Plaintiffs failed to prove continuous, uninterrupted and adverse possession for 12 years, and did not identify with precision the specific portions claimed; the general prayer over the entire parcel was misconceived
Injunction restraining the Defendants from alienating or interfering with the suit property
The suit was dismissed with no basis for interim relief
Costs of the suit against the Defendants
The court ordered each party to bear their own costs
Costs
Each party shall bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that I find no merit in the Plaintiff’s case and the same is hereby dismissed.
I did however find merit in the Defendant’s Counterclaim and hereby allow the same in terms of prayers a, b and c thereof.
I hereby direct that the Order requiring them to give vacant possession will take effect upon the expiry of 90 days from today.
Each party shall bear their own costs.
In the absence of a survey or any other report delineating the specific portions claimed by the three remaining Plaintiffs, the general prayer sought in the suit is misconceived and inept in the circumstances.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugerwa Katana Fundi & 40 others v Ali Swaleh Ali & another [2018] KEELC 2858 (KLR)", Case Analysis (2018). Malindi HCCC (Originating Summons) - Land Certificate of Title No. CR. 20905, Land Portion No. 5470. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2858/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.