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ELCPartially AllowedMalindi ELC No. 93 of 2013 (consolidated with Malindi ELC No. 140 of 2014)· [2019] KEELC 666 (KLR)

Ring Road Developers Ltd v Papello Investments & 10 others [2019] KEELC 666 (KLR)

Environment and Land Court
22 November 2019
JOJ. O. Olola
2,520 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that long occupation alone does not defeat a registered owner's title unless adverse possession is properly proved for 12 uninterrupted years.

What this practically means

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Executive summary

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The Plaintiff, Ring Road Developers Ltd, was registered as proprietor of LR No. 15068, Kilifi, pursuant to a Grant issued by the Commissioner of Lands on 5th December 1990. It sued the 1st to 9th Defendants for declarations that their titles and occupation were illegal, a permanent injunction, cancellation of titles by the 10th and 11th Defendants, and eviction. The 12th Defendant, Fredrick Ndegwa Karume, had earlier filed an Originating Summons (Mombasa HCCC No. 158 of 2012, transferred as Malindi ELC No. 140 of 2014) claiming the same land by adverse possession; the two suits were consolidated in September 2015. At trial before J. O. Olola J, the Plaintiff's director testified that squatters entered the land in 2006–2009 and that eviction orders were obtained in Kilifi SRMCC No. 285 of 2009. The 12th Defendant claimed occupation since 1959 and, alternatively, a 1978 adjudication allocation to his family. The court found no documentary evidence of either claim, held that a claimant cannot claim title both by adjudication and adverse possession, and held that the Plaintiff's eviction orders meant any adverse possession clock restarted, rendering the 2012 OS premature. The Defendants' claims were dismissed; the Plaintiff's case was proved on a balance of probabilities. Judgment was entered for the Plaintiff as prayed, with eviction suspended for 60 days, and the Plaintiff was awarded costs of both consolidated suits.

Key legal issues

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01

Whether the Defendants had acquired title by adverse possession

Holding

The adverse possession claim failed; occupation was not proved to the required standard and the suit was filed within 12 years of the Plaintiff's assertion of title and eviction orders

Reasoning

The court required proof of peaceful, open and continuous possession for 12 years. No documents evidenced the Defendants' claimed occupation since 1959 or the alleged 1978 adjudication allocation. Eviction orders obtained by the Plaintiff in Kilifi SRMCC No. 285 of 2009 had never been set aside or appealed, so any re-occupation restarted the computation of time. The 12th Defendant's OS filed in 2012 was therefore premature.

p. 4
02

Whether the Defendants could rely on land adjudication/family allocation as an alternative basis of title

Holding

Rejected; nothing was placed before the court to demonstrate any such allocation, and the claim was inconsistent with adverse possession

Reasoning

DW1 claimed at trial that the land had been adjudicated to his family in 1978 under the Roka/Uyombo scheme, yet admitted no title was ever issued. The court found nothing to prove the allocation and noted the inconsistency of claiming the land both by adjudication and by adverse possession. The two routes are mutually inconsistent.

p. 3
03

Whether the Plaintiff proved its case as registered proprietor

Holding

Yes, on a balance of probabilities; the Plaintiff was allocated and owned the property since 1990

Reasoning

The Plaintiff held a Grant issued by the Commissioner of Lands on 5th December 1990 and had obtained eviction orders against the Defendants in 2009. The Defendants produced no documents evidencing their claimed occupation or allocation. The court found the Plaintiff had proved its claim on a balance of probabilities and entered judgment as prayed, subject to a 60-day suspension of eviction.

p. 4

Legal principles established

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  • Adverse possession requires a person to take possession, assert rights over land, and the title holder to omit or neglect to act for 12 years
  • A party claiming adverse possession must prove possession that is peaceful, open and continuous (nec vi, nec clam, nec precario)
  • A claimant cannot simultaneously claim title by land adjudication and by adverse possession; and where a registered proprietor has asserted title and obtained eviction orders, time for adverse possession runs afresh from any subsequent re-occupation

Court orders

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  1. 1.Judgment entered for the Plaintiff as prayed in the Plaint
  2. 2.Declaration that the 1st to 9th Defendants' title to, claim and/or occupation of LR No. 15068, Kilifi is illegal, null and void ab initio
  3. 3.Permanent injunction restraining the 1st to 9th Defendants from trespassing upon, occupying or interfering with LR No. 15068, Kilifi
  4. 4.Order directing the 10th and 11th Defendants to cancel the 1st, 2nd and 3rd Defendants' purported titles
  5. 5.Order of eviction and grant of vacant possession against the 1st to 9th Defendants
  6. 6.Prayer 'd' on eviction suspended for 60 days to allow the Defendants to remove their properties from the suit property
  7. 7.Plaintiff awarded costs of both consolidated suits

Authorities

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Cases cited (1)

  • Mtana Lewa -vs- Kahindi Ngala Mwamgandi
    (2005) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to and occupation of land; suit transferred from the High Court (Mombasa HCCC No. 158 of 2012) and consolidated with Malindi ELC No. 93 of 2013

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, "Ring Road Developers Ltd v Papello Investments & 10 others [2019] KEELC 666 (KLR)", Case Analysis (2019). Malindi ELC No. 93 of 2013 (consolidated with Malindi ELC No. 140 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/666/eng@2019-11-22

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