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ELCPartially AllowedEnvironment and Land Case No. 23 of 2013· [2019] KEELC 424 (KLR)

Rashid Abdulrehman Khator & another (as administrators of the Estate of Tima and Fatuma children of Ali Bashir (Deceased) v Idha Marie Ahmed & 2 others [2019] KEELC 424 (KLR)

Environment and Land Court
28 October 2019
AOA. OmolloCYC. Yano
3,772 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Mombasa court cancelled a buyer's registration over an entire family plot, confirming that buying one heir's share does not make you owner of the whole land.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estates of Tima and Fatuma (children of Ali Bashir), sued the 1st Defendant for entering Plot 1738/VI/MN in July 2012 without authority, seeking declarations that they hold a 2/3 undivided share, that the transfer to the 1st Defendant is null and void, ejectment, damages, an account of income, a permanent injunction, and rectification of the register. The 1st Defendant asserted he purchased a 1/6 share from Rukiya Binti Soud in 1999 and counterclaimed for adverse possession. The court framed four issues: adverse possession, regularity of the registration, entitlement to the plaint orders, and costs. It held the adverse possession claim failed because occupation was consensual and time had not run for 12 years, distinguishing Peter Mbiri Michuki v Samuel Mugo Michuki. It found the registration of the 1st Defendant as owner of the entire plot irregular: only Rukiya's 1/6 share could pass, the transfer was registered without the original title, the reconstructed register lacked affidavits from the registered owners, and gazette notices post-dated registration. Judgment was entered for the Plaintiffs limited to the 2/3 share: declarations, eviction from that portion, an account of income with payment of a 2/3 pro-rata share, a permanent injunction over that portion, and expungement of the entries showing the 1st Defendant as sole owner, with cancellation of the parallel register; the 1st Defendant remains entitled to registration of a 1/6 share subject to the refund agreement. The court refused to annul the lower court order affecting the 1/6 share as unpleaded and against non-parties. Costs were awarded to the Plaintiffs.

Key legal issues

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01

Adverse possession

Holding

The 1st Defendant's counterclaim fails; his occupation was consensual and time did not run for the requisite 12 years

Reasoning

The 1st Defendant entered the land on 24th November 1999 pursuant to a sale agreement, so his occupation was with the consent of the alleged landowner and no evidence showed when that consent was terminated. Even counting from the agreement date, only about 6 years had elapsed. Further, the refund agreement of 8th June 2000 and his registration as proprietor by February 2000 undermined any adverse claim; time runs against a registered proprietor, not in his favour.

p. 3
02

Regularity of the registration of the 1st Defendant as owner of the entire plot

Holding

The registration was irregular and unlawful; only a 1/6 share could validly pass to the 1st Defendant

Reasoning

The title document showed the shares: 2/3 to Tima and Fatuma, 1/6 each to Mohamed and Soud Bin Ali Bashir. The 1st Defendant admitted in cross-examination that there was no entry on the title regarding the other shares. The Registrar (DW2) confirmed the transfer was registered without presentation of the original title, the reconstruction lacked affidavits from the registered owners, and the gazette notices were issued after registration. Registering the whole parcel without transfer documents from the other co-owners was erroneous.

p. 4
03

Entitlement to the orders sought in the plaint

Holding

Judgment entered for the Plaintiffs limited to the 2/3 share; the 1st Defendant retains a 1/6 share subject to the refund agreement

Reasoning

The Plaintiffs proved irregular registration of the 1st Defendant as owner of the entire land. Declarations, eviction from the 2/3 portion, an account of income, permanent injunction in respect of the 2/3 portion, and rectification of the register were granted. The court declined the request to cancel the lower court order concerning the 1/6 share because it was not prayed for and would affect non-parties without a hearing.

p. 4

Legal principles established

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  • For adverse possession to succeed, occupation must be without the consent of the land owner for a period of twelve years
  • Time runs in favour of an adverse possessor where the land is registered in the name of someone other than the claimant
  • A transfer registered in favour of a purchaser of one co-owner's share without supporting transfer documents from the other co-owners is irregular

Court orders

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  1. 1.A declaration that the 2/3 undivided share of Plot 1738 of section VI Mainland North be registered in the name of the Plaintiffs for the benefit of the heirs of the estates they represent
  2. 2.A declaration that the transfer of the plot registered in favour of the 1st Defendant is null, void and legally ineffectual and that the 1st Defendant is a trespasser upon a portion measuring 2/3 of the plot, with an order of eviction from that portion
  3. 3.An order for an account or inquiry as to income accruing to the 1st Defendant with directions that he pays over to the Plaintiffs a 2/3 pro-rata share of all income from continued use of the suit property from July 1, 2012 until surrender of vacant possession
  4. 4.A permanent injunction barring the 1st Defendant from entering or remaining on the 2/3 portion of plot 1738 and an order that he restore that portion to its state at his own expense
  5. 5.The 2nd Defendant directed to expunge from the register any entry made in favour of the 1st Defendant as sole owner and to cancel any parallel register, with the 1st Defendant entitled to be registered as owner of 1/6 share subject to the terms of the refund agreement
  6. 6.Costs of the suit awarded to the Plaintiffs

Authorities

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Legislation

  • Registration of Titles Act (repealed)section 65(h)
  • Registration of Titles Act Cap 281 (repealed)section 34
  • Registration of Titles Actsection 26(2)
  • Law of Succession Actsections 75A and 81A
  • Law of Contract Actsection 3(3)

Cases cited (1)

  • Peter Mbiri Michuki Vs Samuel Mugo Michuki
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution

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, "Rashid Abdulrehman Khator & another (as administrators of the Estate of Tima and Fatuma children of Ali Bashir (Deceased) v Idha Marie Ahmed & 2 others [2019] KEELC 424 (KLR)", Case Analysis (2019). Environment and Land Case No. 23 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/424/eng@2019-10-28

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