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ELCPartially AllowedMalindi ELC No. 44 of 2010 (consolidated with Mombasa HCCC No. 158 of 2009 (O.S))· [2019] KEELC 1742 (KLR)

Railway Housing Co-operative Society v Balu Munga & 10 others [2019] KEELC 1742 (KLR)

Environment and Land Court (High Court), Malindi
20 September 2019
JOJ. O. Olola
2,850 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court evicted families who had lived on land for decades because their adverse possession claim was procedurally flawed and interrupted by an earlier suit.

What this practically means

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Executive summary

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This consolidated first-instance land dispute was heard at Malindi between the Railway Housing Co-operative Society Ltd (Plaintiff) and eleven Defendants (Kaingu Balu Munga & others), who had earlier filed an Amended Originating Summons at Mombasa claiming the suit land (Plot Kilifi/Kikambala/Block 285/3, subdivided into Plot Nos. 28, 29, 32, 33, 35 and 43) by adverse possession. The Plaintiff bought the six parcels in 2005 from Duncan Kamau Kinuthia (who had bought them in 1996 from the original registered owner) for about Kshs 6.8-6.9 million, obtained titles in 2006, and sued for eviction, a declaration of ownership and a permanent injunction, alleging the Defendants were trespassers who invaded in 2006. The Defendants claimed ancestral occupation since the 1960s, alleging the land had been left to their families by a former owner, Sheila Norton, and sought to be declared proprietors of 38 acres by adverse possession. The court held that the Defendants failed to comply with the procedure for adverse possession claims, having not annexed a certified extract of title, and could not identify the land claimed (10.2 acres against 38 acres claimed). Their possession was also interrupted by Kilifi PMCC No. 347 of 2006, and 12 years had not elapsed since the Plaintiff acquired the land. The Defendants' Originating Summons was dismissed; the Plaintiff's suit was allowed as prayed, with eviction orders enforceable after 60 days, and the Plaintiff was awarded costs.

Key legal issues

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01

Whether the Defendants proved adverse possession

Holding

No - the Defendants failed to prove adverse possession; the claim was dismissed

Reasoning

The Defendants' Amended Originating Summons did not comply with the prescribed procedure: no certified extract of title was annexed, making it unclear which parcel they claimed (10.2 acres versus the 38 acres claimed). Their claim was also interrupted by the 2006 suit, and 12 years had not run against the Plaintiff who purchased in 2005. The Plaintiff proved ownership and that the Defendants invaded in 2006.

p. 4
02

Whether the Plaintiff proved entitlement to possession, eviction and injunction

Holding

Yes - the Plaintiff proved its case on a balance of probabilities and was granted the reliefs sought in the Plaint

Reasoning

It was uncontested that the six parcels were registered in the Plaintiff's name; titles were produced. Plaintiff's witnesses consistently testified the land was vacant at purchase in 2005 and invaded in 2006. The court found the Plaintiff had proved its case on a balance of probabilities and allowed the suit as prayed, with eviction enforceable after 60 days.

p. 4

Legal principles established

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  • An adverse possession claimant must annex a certified extract of title to the supporting affidavit, as identification of the land in the possession of an adverse possessor is an integral part of proving adverse possession
  • A claim of adverse possession is interrupted by the filing of a suit by the registered owner seeking possession

Court orders

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  1. 1.The Defendants' Amended Originating Summons dated 24th May 2011 is dismissed
  2. 2.The Plaintiff's suit is allowed as prayed in the Plaint dated 7th May 2010
  3. 3.A declaration that the Plaintiff is the lawful and rightful owner of the suit premises and entitled to possession to the exclusion of the Defendants, who are declared trespassers
  4. 4.Eviction orders under Prayer (b) to be enforced as prayed upon expiry of 60 days from the date of judgment in the event the Defendants have not vacated
  5. 5.The Plaintiff is awarded the costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 37(1)
  • Civil Procedure RulesOrder 37 Rule 7
  • Civil Procedure Rules (as cited in Kasuve)Order XXXVI rule 3D(2)

Cases cited (2)

  • Teresa Wachuka Gathira -vs- Joseph Mwangi Gachira
    Civil Appeal No. 325 of 2003
  • Titus Mutuku Kasuve -vs- Mwaani Investment Ltd & 4 others
    (2004) EKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court over land disputes (transferred to the Environment and Land Court), including claims for adverse possession under Section 37/38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules

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, "Railway Housing Co-operative Society v Balu Munga & 10 others [2019] KEELC 1742 (KLR)", Case Analysis (2019). Malindi ELC No. 44 of 2010 (consolidated with Mombasa HCCC No. 158 of 2009 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1742/eng@2019-09-20

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