Mario Majane Kimani & 12 others v Nairobi City Council & 2 others [2019] KEELC 321 (KLR)
The bottom line
#The Environment and Land Court dismissed a community's 20-year claim to Baba Dogo land because they filed suit after eviction and lacked key documents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Was this suit filed in accordance with the law or in other words is this suit competent?
- 2.Who is the registered owner of the suit property?
- 3.Have the plaintiffs proved that they have been in possession of the suit property as to call for a declaration that the interest of the registered owner has been extinguished?
- 4.Which order should be made on costs?
Key legal issues
#Competency of the representative suit and compliance with Order 1 Rule 8 and Order 37 Rule 7(2)
The suit was incompetent: leave was granted before the Baba Dogo Welfare Society existed, Order 1 Rule 8 procedures (service on the 800 members) were not followed, and no certified extract of title was annexed to the Originating Summons as required by Order 37 Rule 7(2)
The court found the plaintiffs neither served the 800 alleged members personally nor by advertisement, and the Society claimed as the umbrella for the suit was only registered in 2000, after leave was granted. Order 37 Rule 7(2) requires an annexed certified extract of title to ensure the claim is directed at the registered owner. No extract of title or official search was annexed or produced at trial for either parcel. Notwithstanding the finding of incompetence, the court proceeded to consider the merits in the interest of substantive justice.
Registered ownership of LR No. 336/64
The 3rd Defendant, Avi Marketing and Investments Limited, proved it is the registered owner; the change of name from Kutchi Constructions Limited was effected pursuant to a special resolution passed in January 1999, before the purchase, and the delay in issuing the certificate was attributable to the companies registry
The court traced the chain from Baba Dogo and Francis Soares through the 1973 indenture to the 2nd Defendant and the 1999 sale to the 3rd Defendant. Although the certificate of change of name issued only in 2007, the special resolution dated January 1999 predates the purchase, and the lease was renewed for 50 years with effect from 2010, confirming the 3rd Defendant's registered ownership.
Whether the plaintiffs proved adverse possession
No. The plaintiffs were evicted before filing suit, occupation was not with the knowledge of the registered owner, and individual witnesses did not prove the requisite 12 years of continuous possession
The court held that a person claiming adverse possession must file suit before any interruption of possession; one evicted before asserting rights cannot claim unless he re-occupies for a fresh 12 years. There was no evidence the registered owners knew of trespassers, photographs showed the property vacant, and key witnesses' periods of occupation fell short of 12 years. Some witnesses were found not credible.
Legal principles established
#- An originating summons for adverse possession must be supported by an affidavit annexing a certified extract of title; failure to annex or produce an extract of title or official search is fatal to the claim
- Possession must be continuous and uninterrupted for at least 12 years with the knowledge of the registered owner, and a claim for adverse possession must be filed before any interruption or eviction occurs
Court orders
#- 1.The Plaintiffs' suit is dismissed
- 2.Costs of the suit awarded to the Defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (claim for adverse possession under Section 38 of the Limitation of Actions Act; suit brought as a representative suit under Order 1 Rule 8 of the Civil Procedure Rules)
Relief refused
#Declaration of adverse possession over LR No. 336/64
Suit incompetent and adverse possession not established; plaintiffs were evicted before filing suit and never proved 12 years' continuous possession
Costs
The Plaintiff's suit is hereby dismissed with costs to the Defendants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This suit is a claim for adverse possession based on Section 38 of the Limitation of Actions Act. Under Order 37 Rule 7 (2), the Originating Summons must be supported by an affidavit to which a certified extract of the title to the land in question has to be annexed.
I find that the Plaintiffs' suit is incompetent and is for striking out. However in case I may be wrong given the fact that the court ought to do substantive as opposed to technical justice , I will proceed to address the merits of this case.
The Plaintiff's suit is hereby dismissed with costs to the Defendants.
Dated, Signed and Delivered at Nairobi this 7th day of November 2019.
Issues in the judgment
#The judgment refers to an indenture of transfer to the 3rd Defendant dated 28th May 1999 in one passage while the indenture conveying the property to the 2nd Defendant is dated 16th March 1973; the dates of the transfer chain are not fully reconciled
The special resolution changing the company's name is given as 9th January 1999 in the evidence narrative and 19th January 1999 in the court's analysis
The case number is given as ELC NO. 1971 OF 1999 although the suit originated as Nairobi HCCC No.1648 of 1999 (OS), which was terminated; the numbering appears anachronistic for a 1999 filing
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mario Majane Kimani & 12 others v Nairobi City Council & 2 others [2019] KEELC 321 (KLR)", Case Analysis (2019). ELC No. 1971 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/321/eng@2019-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.