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ELCAllowedOriginating Summons dated 31st August 2016, filed 5th September 2016 (PLOT NO.398/II/MN)· [2018] KEELC 4002 (KLR)

Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 others [2018] KEELC 4002 (KLR)

Environment and Land Court (High Court), Mombasa
15 March 2018
CYC. Yano
1,259 words in judgment
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The bottom line

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A Mombasa court gave six families ownership of a 2-acre plot after they openly occupied it for over 12 years without permission.

What this practically means

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Executive summary

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Six plaintiffs took out an Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules and Sections 7, 37 and 38 of the Limitations of Actions Act, seeking to be declared owners of Plot No.398/II/MN (Title No.CR.1006), measuring 2.05 acres and registered in the names of nine defendants as tenants in common, by reason of adverse possession. The defendants, served by newspaper advertisement pursuant to leave granted on 23rd November 2016, did not enter appearance, and the suit proceeded ex parte. Four plaintiffs testified: they had occupied the land for periods ranging from 16 to 60 years, constructed permanent homes, fenced their portions, connected water and electricity, farmed and run businesses, and had done so openly, peacefully and without interruption. They produced the title, an official search and photographs of extensive developments. The court reviewed the settled requirements of adverse possession from Wambugu v Njuguna, Mbira v Gachuhi, Jandu v Kirplal and Mtana Lewa v Kahindi Ngala Mwangandi, including that possession must be actual, open, notorious, exclusive and hostile - nec vi, nec clam, nec precario - for 12 years. Finding no contradicting evidence and concluding that such vast and permanent developments must have been undertaken openly over time, the judge held the plaintiffs had proved their case on a balance of probability. The suit was allowed; the plaintiffs were declared entitled to be registered as owners of the plot, with costs of the suit to the plaintiffs.

Key legal issues

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01

Whether the plaintiffs proved adverse possession of the suit property

Holding

Yes - the plaintiffs proved continuous, open, uninterrupted possession exceeding 12 years and were entitled to be registered as owners.

Reasoning

The court set out the settled requirements from Wambugu v Njuguna, Mbira v Gachuhi, Jandu v Kirplal and Mtana Lewa: possession must be actual, open, notorious, exclusive and hostile for 12 years without the owner's permission. The plaintiffs testified to occupation ranging from 16 to 60 years, with permanent houses, fencing, utilities and farming. There was no contradicting evidence; the title and official search confirmed registration in the defendants' names, and photographs showed extensive open developments which the judge found must have been undertaken openly over time.

p. 3

Legal principles established

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  • A claimant seeking title by adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption.
  • Adverse possession requires peaceful, open and continuous possession - nec vi, nec clam, nec precario.

Court orders

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  1. 1.The suit by way of originating summons dated 31st August 2016 and filed on 5th September 2016 is allowed
  2. 2.The plaintiffs are entitled to be registered as the owners of PLOT NO.398/II/MN (TITLE NO.CR.1006)
  3. 3.Costs of the suit to the plaintiffs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Limitations of Actions Act Cap 22 Laws of KenyaSections 7, 37 and 38

Cases cited (4)

  • Wambugu -v- Njuguna
    (1983) KLR 173
  • Mbira -v- Gachuhi
    (2002) IEALR 137
  • Jandu -v- Kirplal & Another
    (1975) EA 225
  • Mtana Lewa -v- Kahindi Ngala Mwangandi
    (2005) eKLR
Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules and Sections 7, 37 and 38 of the Limitations of Actions Act Cap 22 Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Celina Muthoni Kithinji v Safiya Binti Swaleh & 8 others [2018] KEELC 4002 (KLR)", Case Analysis (2018). Originating Summons dated 31st August 2016, filed 5th September 2016 (PLOT NO.398/II/MN). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4002/eng@2018-03-15

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