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ELCAllowedOriginating Summons dated 22nd June, 2010· [2018] KEELC 3860 (KLR)

Festus Titus Kimele v Pius Ngui Kiswili & another [2018] KEELC 3860 (KLR)

Environment and Land Court
13 April 2018
OAO.A. Angote
449 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitui man who openly farmed land for over 25 years was declared its lawful owner by Kenya's Environment and Land Court.

What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons dated 22nd June 2010 seeking a declaration that he had acquired 25.015 acres of land comprised in title number Mutonguni/Kauwi/1247, situated in Kitui West District and registered under the Registered Land Act, by adverse possession, and an order that he be registered as absolute proprietor of that portion. He deponed that the Defendants are administrators of the Estate of Kiswili Nyile, the registered proprietor, and that he took vacant possession of the land in 1985 and has cultivated it continuously and peacefully for more than twelve years. Although served, the Defendants filed no response and did not oppose the claim. The Plaintiff testified as PW1 that he had utilised the land since 1985, and counsel submitted that by 2010 he had occupied it for twenty-five years, relying on several authorities. The court, O.A. Angote J, applying the principle that adverse possession requires open, continuous and uninterrupted possession for at least twelve years (citing Patrick Magu Mwangi vs. Joreth Limited), found the Plaintiff's possession uncontroverted and established for more than twelve years. The court allowed the Originating Summons, declared the Plaintiff entitled to the 25.015 acres by adverse possession, ordered the Land Registrar, Kitui County to register him as owner of that portion excised from the title, and directed each party to bear his own costs.

Key legal issues

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01

Whether the Plaintiff established adverse possession of 25.015 acres of Mutonguni/Kauwi/1247

Holding

The claim succeeded; the Plaintiff took vacant possession in 1985 and had occupied the land for over twelve years without interruption, and the Defendants did not controvert the claim.

Reasoning

The Plaintiff deponed and testified that he took vacant possession of the 25.015 acres in 1985 and had continuously cultivated it since. Though served, the Defendants filed no pleading and the claim was unopposed. Applying the requirement of open, continuous and uninterrupted possession for at least twelve years, the court found the period exceeded the statutory threshold and declared the Plaintiff entitled to the land and ordered his registration.

p. 2

Legal principles established

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  • To succeed in a claim for adverse possession, there must be open, continuous and uninterrupted possession of land for at least twelve years.

Court orders

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  1. 1.The Plaintiff be and is hereby declared to be entitled to 25.015 acres comprised in parcel of land known as Mutonguni/Kauwi/1247 by virtue of having acquired it by adverse possession
  2. 2.The Land Registrar, Kitui County, be and is hereby ordered to register the Plaintiff as the owner of 25.015 acres of land excised from title number Mutonguni/Kauwi/1247
  3. 3.Each party to bear his own costs

Authorities

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Legislation

  • Registered Land ActChapter 300 Laws of Kenya

Cases cited (1)

  • Patrick Magu Mwangi vs. Joreth Limited
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction under the law on adverse possession; land registered under the Registered Land Act Chapter 300 Laws of Kenya

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, "Festus Titus Kimele v Pius Ngui Kiswili & another [2018] KEELC 3860 (KLR)", Case Analysis (2018). Originating Summons dated 22nd June, 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3860/eng@2018-04-13

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