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ELCDismissedMisc. ELC Case No. 91 of 2014 (O.S)· [2019] KEELC 1816 (KLR)

Talal Omar Almas v Khadija Said Rashid [2019] KEELC 1816 (KLR)

Environment and Land Court
27 June 2019
AOA. Omollo
1,994 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a land claimant's adverse possession case because he could not prove 12 years of continuous, peaceful occupation of the plot.

What this practically means

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Executive summary

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Talal Omar Almas filed an originating summons in the Environment and Land Court at Mombasa seeking a declaration that he was entitled to plot 34/11/MN by adverse possession, to be registered as its proprietor, and to costs. He testified that he entered the land in 2002, farmed it, and from 2012 built a house, greenhouse and chicken house, producing photographs and a search certificate. In cross-examination he admitted being charged and convicted of trespass and forcible detainer over neighbouring plot 667 in Criminal Case No. 930 of 2011, though he claimed acquittal on appeal without producing the appeal proceedings. Rukia Said Rashid testified for the defendant, stating the plot was inherited from their father Said Rashid, that the plaintiff invaded in 2010, and producing the pleadings in ELC 178 of 2012 (a parallel adverse possession suit over plot 667 in which she was sued), the charge sheet and a valuation report. The court found the plaintiff to be the same person as the 2nd plaintiff in ELC 178 of 2012, found his photographs uncorroborated, and concluded he had not proved uninterrupted possession for over 12 years. Applying the Kasuve v Mwaani Investments principles, the court dismissed the suit with costs to the defendant and made no orders on the counterclaim the defendant claimed to have filed, as none was on record.

Key legal issues

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01

Whether the plaintiff proved uninterrupted possession and occupation of plot MN/11/34 for over 12 years

Holding

The plaintiff failed to prove possession on a balance of probabilities, and his possession, if any, was not shown to be uninterrupted for 12 years; a criminal conviction for trespass and forcible detainer over the neighbouring plot undermined his claim of peaceful possession.

Reasoning

The court weighed the plaintiff's claim of occupation since 2002 against the defence evidence that the plots were invaded in 2010. The plaintiff's photographs lacked corroboration, and the charge sheet in Criminal Case No. 930 of 2011, served via the replying affidavit, established he had been convicted of trespass and forcible detainer over the neighbouring plot 667. The court also found he was the 2nd plaintiff in ELC 178 of 2012, a parallel adverse possession suit over plot 667, contradicting his denials.

p. 2
02

Whether the evidence of Rukia Said Rashid, who testified on behalf of the defendant, should be disregarded for lack of authority

Holding

No. She showed a stake in the suit plot as a beneficiary of the estate of which she deposed she was administrator, and the plaintiff raised no objection at trial.

Reasoning

The witness testified that the suit plot was among those inherited from her late father Said Rashid and deposed in her replying affidavit that she was the administrator of his estate. The plaintiff did not object to the affidavit or her testimony when she testified; raising the objection only in submissions was an afterthought that would unfairly deny the defence a chance to respond.

p. 2

Legal principles established

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  • A claimant for adverse possession must prove exclusive possession and as of right without interruption for 12 years after dispossessing the owner
  • Photographic evidence of development on land requires corroboration, such as a survey report or approved plans, where occupation is denied
  • An objection to a witness's authority raised for the first time in submissions, without objection at trial, is an afterthought

Court orders

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  1. 1.The plaintiff's originating summons claiming adverse possession of plot MN/11/34 is dismissed
  2. 2.Costs of the suit awarded to the defendant
  3. 3.No orders made on the alleged defence and counterclaim, as none was on record

Authorities

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Legislation

  • Limitation of Actions Actsection 37(a)

Cases cited (5)

  • Lawrence Muiruri Njuguna –versus– Charles Mwenga Mulwa
    (2017) eKLR
  • Kasuve –versus– Mwaani Investments Ltd & Others
    (2004) 1 KLR 184
  • Malsom Bell –versus– Daniel Moi
    (2013) eKLR
  • Samuel Nzunga & 2 Others –versus– Ali Abdalla
    (2013) eKLR
  • Bakari Shaban & 39 others –versus– Said Bin Rashid Khamis
    Mombasa Civil Appeal No. 33 of 2016
Jurisdiction invoked
Environment and Land Court jurisdiction over adverse possession claims relating to land (originating summons under the Limitation of Actions Act, section 37(a))

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, "Talal Omar Almas v Khadija Said Rashid [2019] KEELC 1816 (KLR)", Case Analysis (2019). Misc. ELC Case No. 91 of 2014 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1816/eng@2019-06-27

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