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ELCPartially AllowedOriginating Summons dated 23rd November 2017 (filed 24th November 2017)· [2019] KEELC 2860 (KLR)

Moses Masivai Barasa & another v Mohamed Akram Kaderdina [2019] KEELC 2860 (KLR)

High Court of Kenya
26 June 2019
JOJ. O. Olola
786 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Two families who openly occupied Kilifi land for over 12 years won ownership through adverse possession, displacing the absent registered owner.

What this practically means

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Executive summary

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By an Originating Summons dated 23rd November 2017, Moses Masivai Barasa and Stephen Ndayiya Buhasia sought declaratory and registrable relief over 2.028 hectares on Plot No. 12889/127-Kilifi, claiming to have acquired it by adverse possession. They averred that they entered the premises in 2003 and 1994 respectively with their families, without the authority or consent of the registered owner, Mohamed Akram Kaderdina, and have remained in open and continuous occupation ever since, while the registered owner has never occupied or utilised the land. As the respondent could not be traced, service was effected by advertisement in the Standard Newspaper on 18th April 2018; he never entered appearance. Directions were taken on 11th June 2018 for the matter to proceed by affidavit evidence, with written submissions filed. The court relied on section 38(1) of the Limitation of Actions Act (Cap 22) and the definition of adverse possession in Mtana Lewa v Kahindi Ngala Mwamgandi (2005) eKLR, requiring 12 years of possession adverse to the title of an owner who fails to act. A certificate of title showed transfer of the suit property to the respondent on 1st September 1994, and a postal search of 18th April 2016 confirmed he remained the registered owner. Photographs of homesteads, structures and crops supported the applicants' occupation. Finding the claim proved on a balance of probability in the absence of any contradicting evidence, the court answered the questions posed in the affirmative and on 26th June 2019 declared the applicants proprietors of the plot by adverse possession and entitled to be registered and issued with a Certificate of Title. No express costs order was made despite the third question.

Key legal issues

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01

Whether the applicants proved adverse possession for the statutory period of 12 years

Holding

Yes - the applicants entered in 1994 and 2003, resided openly and continuously without threat of eviction, and the registered owner never occupied or used the land

Reasoning

The court relied on the certificate of title showing transfer to the respondent on 1st September 1994 and a postal search confirming continued ownership. The applicants' affidavits and photographs of homesteads, structures and crops evidenced occupation. In the absence of contrary evidence (the respondent never entered appearance), the court found the claim proved on a balance of probability.

p. 2
02

Whether the court could order registration of the adverse possessor as proprietor under section 38(1) of the Limitation of Actions Act

Holding

Yes - the court answered the questions posed in the affirmative and declared the applicants entitled to be registered and issued with a Certificate of Title

Reasoning

Section 38(1) empowers a person entitled by adverse possession to land registered under the cited Acts to apply to the High Court for an order that he be registered as proprietor in place of the person then registered. The court found the statutory threshold met and exercised that power in favour of both applicants.

p. 1

Legal principles established

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  • Adverse possession requires possession asserted against the registered owner for the statutory period of 12 years in Kenya
  • A registered owner may be dispossessed where he has never occupied or utilised the land and an unauthorised occupant has been in open and continuous possession

Court orders

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  1. 1.That the Plaintiffs/Applicants are entitled to be declared as the proprietors of 2.028 Ha of all that parcel of land known as Plot No. 12889/127-Kilifi by way of adverse possession
  2. 2.That the Plaintiffs/Applicants are entitled to be registered as the owners of the said Plot No. 12889/127-Kilifi and to be issued with a Certificate of Title thereto

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)

Cases cited (1)

  • Mtana Lewa –vs– Kahindi Ngala Mwamgandi
    (2005) eKLR
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act (Cap 22)

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, "Moses Masivai Barasa & another v Mohamed Akram Kaderdina [2019] KEELC 2860 (KLR)", Case Analysis (2019). Originating Summons dated 23rd November 2017 (filed 24th November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2860/eng@2019-06-26

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