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ELCPartially AllowedOriginating Summons dated 16th July 2015 (as amended 16th October 2015)· [2019] KEELC 3250 (KLR)

Aziza Soud Hamisi v Loise Nduta Itotia [2019] KEELC 3250 (KLR)

Environment and Land Court
29 May 2019
JOJ. O. Olola
2,285 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Malindi court gave a woman ownership of Mtwapa land she openly occupied and developed for over 12 years without the owner's objection.

What this practically means

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Executive summary

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By Originating Summons dated 16th July 2015 and amended on 16th October 2015, Aziza Soud Hamisi sought determination that she was entitled to Plot No. MN/III/506 (CR No. 14011), measuring 1.616 Hectares at Mtwapa, by adverse possession, together with an order vesting title in her and directing the Registrar of Titles to issue a Provisional Certificate of Title. Loise Nduta Itotia, the registered proprietor, opposed, contending that the property belonged to the estate of her late husband and that when her son visited in 2006 the land was covered in bush with no sign of the Applicant. The Applicant testified that she moved onto the land in 2002, built a residential house and the Jumba Ruins Monsoon Restaurant, and cultivated crops; her occupation was corroborated by a Village Elder, an employee of the National Museums of Kenya (an adjoining owner), a survey report confirming old and permanent structures, and water and electricity bills. Applying section 38(1) of the Limitation of Actions Act and the tests in Mtana Lewa and Mbira v Gachuhi, the court found the Applicant had been in exclusive, open, quiet and uninterrupted possession for over 12 years, that the Respondent had taken no steps to dispossess her, and that the Respondent's account was unreliable. The summons was allowed: the Applicant was declared entitled to be registered as proprietor and the Registrar of Titles was directed to issue a Provisional Certificate of Title. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Applicant had been in adverse possession of the suit property for the statutory period of 12 years

Holding

Yes - the Applicant proved exclusive, open, quiet and uninterrupted possession since 2002, supported by witnesses, a survey report and utility bills

Reasoning

The court found undisputed registration of the Respondent and evidence of the Applicant's continuous occupation since 2002, including permanent structures, the Jumba Ruins Monsoon Restaurant, cultivation and utility bills. A survey report confirmed old and permanent structures. The Respondent's claim of finding only bush in 2006 was discredited, as DW2 could not explain how he identified the parcel having last visited as a boy. The Respondent never dispossessed the Applicant or issued a notice to vacate.

p. 3

Legal principles established

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  • Adverse possession is established where a person takes possession of land, asserts rights over it and the title holder omits or neglects to take action for 12 years
  • A claimant must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption

Court orders

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  1. 1.A declaration that the Applicant is entitled to be registered as proprietor of the suit premises by virtue of adverse possession as prayed in the Originating Summons
  2. 2.An order directing the Registrar of Titles to issue the Applicant with a Provisional Certificate of Title as sought
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 37

Cases cited (2)

  • Mtana Lewa vs Kahindi Ngala Mwamgandi
    (2015) eKLR
  • Mbira vs Gachuhi
    (2002) 1 EA LR 137
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Aziza Soud Hamisi v Loise Nduta Itotia [2019] KEELC 3250 (KLR)", Case Analysis (2019). Originating Summons dated 16th July 2015 (as amended 16th October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3250/eng@2019-05-29

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