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ELCAllowedOriginating Summons dated 12th June 2015 (Mombasa)· [2018] KEELC 4699 (KLR)
Ali Mohamed Musa & 6 others v Mahmood Hassam & 4 others [2018] KEELC 4699 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#A Mombasa court declared 336 families the rightful owners of 60 acres of Mombasa land after occupying it openly for over 12 years without permission.
What this practically means
#Executive summary
#The 336 plaintiffs brought an Originating Summons under Sections 37 and 38 of the Limitation of Actions Act and Order 37 rule 7 of the Civil Procedure Rules seeking to be declared owners by adverse possession of plot Number 324/111/MN-CR 345 measuring approximately 60 acres, to be registered as proprietors in common, and for a permanent injunction against the defendants. The defendants, served by advertisement in the Standard Newspaper following leave granted on 28th October 2015, neither entered appearance nor participated, and the case proceeded ex parte. Two witnesses testified: PW1 Kalume Kahindi Dzuya, who had occupied the land since 1985 (his father before him having lived there until his death in 1967), and PW2 Alex Masa Gwede, also an occupier since 1985. Both testified that their occupation was without the defendants' permission, rent-free, open and uninterrupted, until strangers claiming ownership appeared in 2014. The court set out the settled requirements of adverse possession from Wambugu v Njuguna, Mbira v Gachuhi, Jandu v Kirplal and Mtana Lewa v Kahindi Ngala Mwagandi: continuous and uninterrupted possession for 12 years or more, open and notorious to the owner, and hostile title asserted, with possession that is peaceful, open and continuous (nec vi, nec clam, nec precario). Finding the plaintiffs' photographic and testimonial evidence uncontradicted, the court held the claim proved on a balance of probability and allowed the Originating Summons in terms of prayers 1, 2 and 3, making no order as to costs given the defendants' non-participation. Judgment delivered at Mombasa on 17th January 2018 by C. Yano, J.
Key legal issues
#01
Whether the plaintiffs established title by adverse possession
Holding
Yes - the plaintiffs proved continuous, open, notorious and uninterrupted occupation for over 12 years without the owner's permission
Reasoning
The plaintiffs' uncontradicted evidence showed occupation since 1985, or since before 1967 through their fathers, without permission, rent payment or interruption. They produced photographs of homes and vast developments that must have been undertaken openly over time. No evidence contradicted their averments, so the claim was proved on a balance of probability.
p. 3
Legal principles established
#- A claimant for adverse possession must prove continuous, open and notorious possession for the statutory period of 12 years, hostile to and without permission of the owner
- Adverse possession requires possession that is peaceful, open and continuous - nec vi, nec clam, nec precario
Court orders
#- 1.The suit by way of Originating Summons dated 12th June 2015 is allowed in terms of prayers 1, 2 and 3 thereof
- 2.The plaintiffs declared owners by adverse possession of plot Number 324/111/MN-CR 345 measuring 60 acres or thereabouts
- 3.The District Land Registrar, Mombasa ordered to register the plaintiffs as proprietors in common of the suit property
- 4.Permanent injunction restraining the defendants, their servants and agents from accessing, entering or interfering with the suit property
- 5.No order as to costs
- Jurisdiction invoked
- Sections 37 and 38 of the Limitation of Actions Act; Order 37 rule 7(1) and (2) of the Civil Procedure Rules; Land Act No. 6 of 2012; Land Registration Act No. 3 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali Mohamed Musa & 6 others v Mahmood Hassam & 4 others [2018] KEELC 4699 (KLR)", Case Analysis (2018). Originating Summons dated 12th June 2015 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4699/eng@2018-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.