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ELCAllowedOriginating Summons dated 24th October 2017, filed 3rd November 2017· [2019] KEELC 4853 (KLR)

Eunice Kahindi Gutu v Mohammed Ajaz Mirza [2019] KEELC 4853 (KLR)

High Court of Kenya
18 January 2019
JOJ. O. Olola
1,324 words in judgment
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The bottom line

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A woman who openly farmed and lived on land for over 24 years won full ownership from the registered owner, who never challenged her claim.

What this practically means

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Executive summary

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By an Originating Summons dated 24th October 2017, Eunice Kahindi Gutu sought a declaration that she was entitled to Land Parcel No. Kilifi/Mtondia/165 by adverse possession, having occupied and worked on it since 1992, and an order that she be registered as proprietor in place of Mohammed Ajax Mirza. The Respondent was served by substituted service through an advertisement in the Standard Newspaper of 9th March 2018 but neither entered appearance nor filed a response, and the matter proceeded by formal proof. The Applicant testified as PW1, explaining that she entered the land in 1992 with her husband, an employee of one Joseph Naran; when Naran stopped paying salary and disclosed that Janet Wairimu Chokwe had sold the land to the Respondent, her husband left while she remained, built a home and farmed the land openly. A Green Card extract showed the 12-acre parcel transferred from the Settlement Fund Trustees to Jane Wairimu Chokwe on 7th July 1989 and to the Respondent on 25th May 1992. Four other witnesses - her adult son and three neighbours - corroborated her continuous, open and uninterrupted occupation of over 24 years. Applying sections 38, 13(1) and 7 of the Limitation of Actions Act, the court identified three conditions for adverse possession: registration in another's name, open and exclusive adverse possession, and occupation exceeding 12 years. All were satisfied on uncontroverted evidence. Judgment was entered for the Applicant as prayed on 18th January 2019.

Key legal issues

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01

Whether the Applicant proved adverse possession over Kilifi/Mtondia/165

Holding

Yes. The Applicant entered in 1992, built a home and farmed the land openly, exclusively and without interruption for over 12 years; the Respondent was served but did not enter appearance or file a defence, leaving the evidence uncontroverted.

Reasoning

The court applied section 38 of the Limitation of Actions Act together with sections 7 and 13(1), setting out the three conditions for adverse possession. The Green Card showed title transferred to the Respondent on 25th May 1992. The Applicant's testimony that she had open, exclusive and uninterrupted possession since 1992 was corroborated by three neighbour witnesses and by her adult son, and remained uncontroverted. The court was satisfied the claim was proved to the required standard.

p. 2

Legal principles established

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  • Conditions for adverse possession: the land must be registered in the name of a person other than the applicant; the applicant must be in open and exclusive possession adverse to the title owner; and the occupation must exceed 12 years following dispossession or discontinuance of possession by the owner

Court orders

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  1. 1.Judgment entered for the Applicant as prayed in the Originating Summons dated 24th October 2017
  2. 2.Applicant declared entitled to be registered as proprietor of Land Parcel No. Kilifi/Mtondia/165 in place of the Respondent

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSection 37
  • Limitation of Actions ActSection 13(1)
  • Limitation of Actions ActSection 7
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (application to the High Court for an order that the applicant be registered as proprietor by adverse possession)

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, "Eunice Kahindi Gutu v Mohammed Ajaz Mirza [2019] KEELC 4853 (KLR)", Case Analysis (2019). Originating Summons dated 24th October 2017, filed 3rd November 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4853/eng@2019-01-18

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