Samson Kavoi & 53 others v Africa Bel-Air Enterprises Company Ltd [2019] KEELC 2926 (KLR)
The bottom line
#Fifty-four Mombasa residents won ownership of land they had occupied openly since 1995, but must first settle a Kshs 50 million bank charge on the property.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs proved adverse possession of the suit property
Yes. The plaintiffs proved open, continuous occupation since 1995 without the defendant's permission, unrebutted by any evidence from the defendant, and the court was satisfied the claim was proved.
The 1st plaintiff testified that the plaintiffs had lived on the plot peacefully since 1995, constructing permanent houses. Their occupation was evidenced by photographs of the houses and the agent's letter of 8 October 2013 served on them, which referred to them as tenants. The defendant never appeared or filed a defence, and adduced no evidence contradicting the claim that the plaintiffs occupied the land without permission. Applying the criteria in Mate Gitabi and Kasuve, the elements of adverse possession were established.
Effect of the registered charge/mortgage over the suit property in favour of a bank that was not joined
The claim was allowed subject to the interest of the bank; the plaintiffs' registration as proprietors is conditional on offsetting the liability due to the bank.
The certificate of title showed entry no. 24 recording a change on 10 October 2013 for Kshs 50,000,000, indicating a charge in favour of the bank. Since the plaintiffs did not join the bank in the proceedings, the court could not extinguish the bank's interest. It therefore allowed the adverse possession claim but made the registration of the plaintiffs conditional upon their offsetting the liability due to Paramount Universal Bank Ltd.
Legal principles established
#- To succeed in a claim for adverse possession, one must prove open occupation without licence or permission of the owner, with intention to possess, and there must be an apparent dispossession of the landowner.
Court orders
#- 1.The plaintiffs' claim for adverse possession is allowed, subject to the interest of the bank
- 2.Registration of the plaintiffs as proprietors of L.R. MN/VI/1042 is subject to their offsetting the liability due to Paramount Universal Bank Ltd
- 3.Costs ordered in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land claims (Originating Summons under the Limitation of Actions Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Kavoi & 53 others v Africa Bel-Air Enterprises Company Ltd [2019] KEELC 2926 (KLR)", Case Analysis (2019). ELC Case No. 256 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2926/eng@2019-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.