Masha Birya Dena v Fred Karl Schumacher & 2 others [2019] KEELC 1355 (KLR)
The bottom line
#A Kenyan court cancelled a land title won through adverse possession because the true owner was never sued or heard.
What this practically means
#Executive summary
#Key legal issues
#Validity of a judgment for adverse possession obtained against non-proprietors of the suit land
The judgment was irregularly obtained through deceit and concealment of material facts and cannot stand
The plaintiff sued the 1st and 2nd defendants presenting them as registered proprietors, annexing only the first page of an RTA title and omitting pages showing the 1995 sale to the applicant. Judgment against non-title-holders is a nullity where used to dispossess the true registered proprietor who was never heard.
Whether the court was functus officio after the judgment of 20 May 2016
The functus officio objection was rejected; the inherent jurisdiction under Section 3A of the Civil Procedure Act applies to undo a judgment that is a clear injustice
Counsel for the plaintiff argued functus officio, but the court held that the judgment on record was not obtained against the registered proprietor and was used to deprive the true owner of land without being sued. Procedural technicalities under Article 159(2)(d) could not derail doing justice.
Whether the applicant should be enjoined as third defendant
The joinder prayer was refused because the suit itself was struck out
The court found the whole suit a fraud and a non-starter commenced against persons who were not the registered proprietors. Striking out the suit removed any foundation for joinder; the plaintiff was instead left free to file a proper suit against the current registered proprietor.
Legal principles established
#- A judgment for adverse possession cannot properly be entered against a person who is not the registered proprietor of the suit land
- The court's inherent power under Section 3A of the Civil Procedure Act may be exercised to set aside a judgment obtained through deceit and concealment of material facts, so as to prevent abuse of court process
- A registered proprietor cannot be deprived of title through proceedings to which he or she was not a party
Court orders
#- 1.The judgment entered on 3 October 2017 and the subsequent decree issued on 4 April 2018 are set aside
- 2.The registration of the plaintiff, Masha Birya Dena, as proprietor of subdivision number 1318 (original No. 743/2 Section III Mainland North) is nullified
- 3.The correct and genuine title to the suit land is that held by Dopp Investment Limited
- 4.The Land Registrar, Mombasa, is directed to Gazette a notice indicating that the plaintiff's title has been nullified and is null and void and incapable of transferring any interest
- 5.The plaintiff's suit is struck out
- 6.The plaintiff is at liberty to file a fresh suit against Dopp Investment Limited or any subsequent proprietor if he wishes to sustain his claim for adverse possession
- 7.The plaintiff shall pay to Dopp Investment Limited the costs of the application
- Jurisdiction invoked
- Inherent power under Section 3A of the Civil Procedure Act, Cap 21, and Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masha Birya Dena v Fred Karl Schumacher & 2 others [2019] KEELC 1355 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1355/eng@2019-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.