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ELCAllowedOriginating Summons dated 31st August 2015 (Mombasa)· [2019] KEELC 147 (KLR)

Ismail Omar Bwanakali & 11 others v Mwalimu Said Boye Alias Mwalimu Said Mwaboye & another [2019] KEELC 147 (KLR)

Environment and Land Court (High Court), Mombasa
20 November 2019
CYC. K. Yano
809 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court handed land ownership to families who openly occupied and developed it for over 12 years without the registered owners' interference.

What this practically means

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Executive summary

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The plaintiffs filed an Originating Summons dated 31st August 2015 seeking to be declared proprietors and registered as owners of 3.6 hectares of KWALE/NG'OMBENI/2397 and KWALE/NG'OMBENI/2398, claiming to have acquired title by adverse possession after occupying the land for over 12 years. The 1st plaintiff deposed that the plaintiffs and their families had lived on the land, built houses and developed it, without any interference from the registered owners, whose identities were unknown to them. The defendants were served and entered appearance through Kiume Kioko & Company Advocates, filing a replying affidavit, but on 20th July 2016 the court directed that the pleadings proceed as a plaint and defence with oral evidence. At the hearing, the 1st plaintiff testified and adopted his witness statement; the defendants and their advocates did not attend. The plaintiffs relied on Section 38 of the Limitation of Actions Act and adverse possession authorities, arguing that the defendants had been dispossessed. The court found the plaintiffs' evidence uncontroverted and credible, noting photographic proof of extensive, permanent developments consistent with open occupation over time. It held that the plaintiffs had proved their case on a balance of probabilities and fell within the doctrine of adverse possession. Judgment was entered allowing the originating summons: the plaintiffs were declared entitled to be registered as tenants in common in equal undivided shares of the two parcels, with costs of the suit awarded to the plaintiffs.

Key legal issues

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01

Acquisition of title by adverse possession

Holding

The plaintiffs proved occupation of over 12 years openly and without interruption, extinguishing the defendants' title and entitling them to registration as tenants in common

Reasoning

The plaintiffs' evidence was uncontroverted as the defendants, though served, neither attended nor participated in the hearing. The 1st plaintiff testified the plaintiffs had occupied the land for over 30 years with permanent developments. Photographic evidence of extensive developments showed open occupation over time. Applying Section 38 of the Limitation of Actions Act and adverse possession principles, the court found the claim proved on a balance of probabilities.

p. 2

Legal principles established

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  • A person in open and uninterrupted occupation of land for over 12 years without interference acquires title by adverse possession and may be registered as owner

Court orders

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  1. 1.The plaintiffs are entitled to be registered as tenants in common in equal undivided shares of the parcels of land known as KWALE/NG'OMBENI/2397 and KWALE/NG'OMBENI/2398
  2. 2.Costs of the suit awarded to the plaintiffs
Jurisdiction invoked
Original jurisdiction under Section 38 of the Limitation of Actions Act (claim for title by adverse possession)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Ismail Omar Bwanakali & 11 others v Mwalimu Said Boye Alias Mwalimu Said Mwaboye & another [2019] KEELC 147 (KLR)", Case Analysis (2019). Originating Summons dated 31st August 2015 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/147/eng@2019-11-20

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