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ELCDismissedOriginating Summons dated 3rd November 2014 (Malindi ELC)· [2019] KEELC 1756 (KLR)

Kadzo Angore Kazungu & another v Abdalla Salim Omar [2019] KEELC 1756 (KLR)

Environment and Land Court
20 September 2019
JOJ.O. Olola
2,078 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kilifi family lost their bid to claim land by adverse possession because they couldn't prove the owner knew they were living on it for 12 years.

What this practically means

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Executive summary

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The Applicants, a mother and her son, brought an Originating Summons under the Limitation of Actions Act, Cap 22 seeking declarations that the Respondent's interest in a portion of sub-division No. 2348 (Original No. 1854/1) Section II MN at Shariani, Kilifi, had been extinguished by adverse possession, that they be registered as proprietors of the portion measuring 589 ft by 260 ft by 150 ft by 144 ft by 30 ft, and that a Certificate of Title issue to them. They claimed uninterrupted and exclusive possession of over 40 and 30 years respectively, asserting their late husband/father Kazungu Chome had lived and been buried on the land. The Respondent denied their occupation, asserting he purchased the land from Shaban Swedi on 21st June 2008 and was registered on 27th June 2008, that the Applicants only invaded in 2011, and that he had already obtained a judgment in Malindi ELC Case No. 2 of 2011 for eviction of their relative Charo Kazungu Chome on 11th July 2014. The court, applying Mtana Lewa v Kahindi Ngala Mwamgandi, held that adverse possession requires continuous, open, notorious and hostile possession for 12 years to the knowledge of the owner. It found no evidence that any registered owner since 1995 knew of the Applicants' occupation; time, if anything, began running against the Respondent only on 27th June 2008, so it had not matured by the suit filed on 4th November 2014. The court also noted the suit might have been filed to circumvent the 2011 eviction judgment. The Originating Summons was dismissed with costs to the Respondent on 20th September 2019.

Key legal issues

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01

Requirements for acquisition of title by adverse possession

Holding

The Applicants must prove continuous possession for 12 years or more, open and notorious to the owner, and hostile assertion of title

Reasoning

Relying on the Court of Appeal's definition in Mtana Lewa v Kahindi Ngala Mwamgandi, the court restated the classic elements: possession must be continuous, open, notorious and hostile, and time runs only when the owner is (or is deemed to be) aware of the occupation. The court then tested the Applicants' evidence against these elements and found them not established.

p. 2
02

Commencement of the limitation period against the Respondent

Holding

If the Applicants were in occupation, time began to run only on 27th June 2008 when the Respondent acquired ownership, so it had not matured by the suit filed on 4th November 2014

Reasoning

There was no proof that any registered owner since 1995 (Mishi Juma Karanja, Shaban Swedi or the Respondent) knew of the Applicants' occupation. The earliest possible starting date against the Respondent was his registration on 27th June 2008; six years later at filing, the 12-year period had not crystalized.

p. 3
03

Possibility of abuse of process

Holding

The suit may have been mounted to circumvent the judgment in Malindi ELC Case No. 2 of 2011, which ordered eviction of the Applicants' relative Charo Kazungu Chome

Reasoning

The Applicants made no attempt to distinguish the land from which Charo Kazungu Chome was to be evicted under the 2014 judgment from the portion now claimed as family land. This overlap suggested the adverse possession claim was filed to defeat that prior judgment, further undermining the Applicants' bona fides.

p. 3

Legal principles established

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  • Adverse possession requires continuous, open and notorious possession for 12 years with hostile assertion of title
  • A registered owner is deemed in possession absent invasion; mere non-use of land for 12 years does not affect title
  • The limitation period does not run against a registered owner unaware of the third party's occupation

Court orders

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  1. 1.The Applicants' Originating Summons is dismissed
  2. 2.Costs of the Originating Summons awarded to the Respondent

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 38(2)

Cases cited (1)

  • Mtana Lewa –vs- Kahindi Ngala Mwamgandi
    (2005) eKLR
Jurisdiction invoked
Limitation of Actions Act, Cap 22 (Sections 37 and 38) - claim for adverse possession by Originating Summons

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, "Kadzo Angore Kazungu & another v Abdalla Salim Omar [2019] KEELC 1756 (KLR)", Case Analysis (2019). Originating Summons dated 3rd November 2014 (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1756/eng@2019-09-20

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