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ELCDismissedELC Suit No. 186 of 2014 (O.S)· [2020] KEELC 95 (KLR)

Silanga Estate plot Owners Welfare Society v County Government of Nairobi & another [2020] KEELC 95 (KLR)

Environment and Land Court
16 December 2020
KBK. BOR
1,598 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court dismissed a society's bid to claim land by adverse possession because the land was public land and procedure wasn't followed.

What this practically means

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Executive summary

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The Plaintiff, a registered welfare society whose members have occupied land in Nairobi since before independence, brought an Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act claiming ownership of L.R. Grant Number I.R 19900 (original L.R. 11344/R (part), current L.R. 18229 to 18269 and 18468, originally L.R. 41/3/6) by adverse possession. The 1st Defendant, the County Government of Nairobi, filed a replying affidavit deponing that the land was granted to the City Council of Nairobi by the government after independence, was subdivided, and that one subdivision, L.R. 18242, was leased to Jenville Motor Works Limited for 99 years from 1994; it urged dismissal of the suit. The 2nd Defendant, the National Land Commission, did not participate. At hearing, two witnesses testified for the Plaintiff; the Defendants did not attend despite notice. The court identified a single issue: whether the Plaintiff was entitled to ownership through adverse possession. It held the claim could not succeed: the Plaintiff failed to annex a certified copy of the title as Order 37 Rule 7 dictates; it failed to serve Jenville Motor Works Limited, the registered lessee of a portion claimed; documentary evidence, including the Plaintiff's own letter of 02/07/2012, showed the land was government land granted to the City Council; and under Section 41 of the Limitation of Actions Act, government land is excluded from adverse possession claims. Relying on Gitu v Ndungu, the court held that no adverse possession claim lies against government land until title has moved from the government. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the Plaintiff proved adverse possession over the suit land

Holding

The claim failed for non-compliance with the prescribed procedure, failure to prove ownership of the land on a balance of probability, and because the land was public/government land excluded from the Limitation of Actions Act

Reasoning

Order 37 Rule 7 requires an adverse possession claim to be supported by a certified extract of title and service on the registered owner. The Plaintiff annexed no certified title and failed to serve Jenville Motor Works Limited, the lessee of a subdivision it claimed. Documentary evidence showed the land was granted to the City Council by the government, making it public land under Article 62(1)(a) vested in the County Government, and Section 41 of the Limitation of Actions Act excludes government land from adverse possession claims.

p. 2

Legal principles established

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  • An adverse possession claim under Order 37 Rule 7 requires annexure of a certified extract of the title and service on the registered owner of the suit land
  • A person cannot claim government land by adverse possession until title has moved from the government

Court orders

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  1. 1.The Plaintiff's claim for adverse possession is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 1
  • Civil Procedure RulesOrder 37 Rule 7
  • Constitution of KenyaArticles 10, 40, 60, 62(1)(a), 62(2), 67(2)(a), 67(3), 159, 162(2)(b)
  • Land Act, 2012Sections 7(e), 12(1)(b), 43(3), 44, 134(1), 155(10)(a)
  • Environment and Land Court Act, 2011Section 13(7)(h)
  • Limitation of Actions ActSections 38 and 41
  • Land Registration ActNot specified

Cases cited (3)

  • Teresa Wachuka Gachira v Joseph Mwangi Gachira
    Civil Appeal No. 325 of 2003
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Gitu v Ndungu & 2 Others
    (2001) eKLR
Jurisdiction invoked
Articles 159 and 162(2)(b) of the Constitution; Section 13(7)(h) of the Environment and Land Court Act, 2011

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, "Silanga Estate plot Owners Welfare Society v County Government of Nairobi & another [2020] KEELC 95 (KLR)", Case Analysis (2020). ELC Suit No. 186 of 2014 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/95/eng@2020-12-16

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