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ELCPartially AllowedMalindi HCCC (Originating Summons) - Land Certificate of Title No. CR. 20905, Land Portion No. 5470

Mugerwa Katana Fundi & 40 others v Ali Swaleh Ali & another [2018] KEELC 2858 (KLR)

Environment and Land Court of Kenya (High Court)
28 June 2018
3,617 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By an Originating Summons under Section 38 of the Limitation of Actions Act, Cap 22, the Plaintiffs (originally 41, reduced to three by trial - the 1st, 3rd and 18th Plaintiffs) sought declarations that they had acquired Land Portion No. 5470 Malindi by adverse possession after over 24 years of occupation, together with registration as proprietors and an interim injunction. The 2nd Defendant and the Interested Party (biological brothers, the registered and beneficial owners respectively) filed a Counterclaim seeking a permanent injunction, vacant possession, demolition of constructions and uprooting of crops, general damages for trespass and costs. The Plaintiffs challenged the validity of the Special Power of Attorney under which the Interested Party filed the Counterclaim, as the advocate allegedly involved denied preparing it; the court nonetheless accepted it, noting it was registered and not disowned by the donor. On the evidence, the court held that while some Plaintiffs may have lived on the land for over 12 years, their possession was neither continuous nor adverse - the Interested Party had asserted rights of entry at a 2012 meeting, and the 3rd Plaintiff's occupation was permissive. Further, the general prayer over the entire 2.935-hectare parcel was misconceived as the Plaintiffs failed to delineate the specific portions in their possession, others also occupied the land, and the court applied Samuel Katana Nzunga on the need for specific identification. The court also found the Plaintiffs insincere, noting a pattern of similar adverse possession claims. The Originating Summons was dismissed and the Counterclaim allowed in terms of prayers (a), (b) and (c), with vacant possession to take effect after 90 days, conditional on the Plaintiffs keeping the peace and not erecting new structures. Each party was to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiffs have acquired title to Land Portion No. 5470 by adverse possession having occupied it for over 12 years
  2. 2.Whether the power of attorney under which the Interested Party filed the Defence and Counterclaim was validly executed
  3. 3.Whether the Plaintiffs identified with precision the specific portions of the suit land in their actual possession
  4. 4.Whether the Defence and Counterclaim by the 2nd Defendant and Interested Party should be allowed

Key legal issues

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01

Whether the Plaintiffs established adverse possession for the statutory 12-year period

Holding

The Plaintiffs failed to prove continuous, uninterrupted and adverse possession; their occupation was interrupted and in part permissive

Reasoning

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.

p. 6
02

Whether the general prayer for the entire parcel could succeed where only portions were occupied

Holding

The prayer was misconceived as the Plaintiffs did not delineate their specific portions and others also occupied the land

Reasoning

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.

p. 5
03

Validity of the power of attorney donated to the Interested Party

Holding

Despite the drafting advocate denying preparing it, the power of attorney was accepted as validly executed and registered

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Dismissal of the Plaintiffs' Originating Summons
  2. 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. 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. 4.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 6

Injunction restraining the Defendants from alienating or interfering with the suit property

The suit was dismissed with no basis for interim relief

p. 6

Costs of the suit against the Defendants

The court ordered each party to bear their own costs

p. 6

Costs

Each party shall bear their own costs

Quotable passages

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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.
p. 6dismissal of the adverse possession claim
I did however find merit in the Defendant’s Counterclaim and hereby allow the same in terms of prayers a, b and c thereof.
p. 6allowance of the counterclaim - final orders
I hereby direct that the Order requiring them to give vacant possession will take effect upon the expiry of 90 days from today.
p. 6grace period for vacant possession - final orders
Each party shall bear their own costs.
p. 6costs order - final orders
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.
p. 5requirement of precision in adverse possession claims

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, "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.