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ELCOtherELC Case of 2014 (Portion No. 21 Lamu, CR 35747)· [2020] KEELC 1203 (KLR)

Mohamed Bwana Obo Athman & 24 others v Kenya Airport Authority [2020] KEELC 1203 (KLR)

Environment and Land Court
25 September 2020
2,165 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 Kenyan court confirmed you cannot claim land ownership by long occupation against the Government, and Manda Island residents lost their Lamu land case entirely.

What this practically means

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Executive summary

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Twenty-five Plaintiffs, suing on behalf of residents of Manda Island in Lamu County, claimed Portion No. 21 Lamu (CR 35747) by adverse possession and prescription, alleging occupation since 1964, and alternatively sought an order compelling the Government to acquire the land with compensation. The Kenya Airports Authority (KAA) denied their claim, asserting registered ownership under Grant No. CR 35747 and that adverse possession cannot lie against the Government. KAA counterclaimed for declarations of ownership and trespass, a permanent injunction compelling the Plaintiffs to vacate, and enforcement through the OCPD Lamu. The Plaintiffs failed to prosecute their suit, which was dismissed for want of prosecution on 10th July 2018, leaving only the Counterclaim for hearing. KAA called one witness, Ali Godana Daye, who produced the Grant and testified that the land was Government property earmarked for airport expansion, that squatters were valued in 2012 and compensated in 2014-2015, with 21 of 25 squatters accepting payment and only the 1st Plaintiff remaining. The court held the Plaintiffs' claim was misguided: the property was public land under Article 62(1)(b) of the Constitution, Section 42 of the Limitation of Actions Act bars adverse possession against the Government, and in any event 12 years had not elapsed since registration in 2002. The unchallenged defence evidence proved the Counterclaim on a balance of probability. Judgment was entered for KAA as prayed in the Counterclaim, with costs of both the suit and the Counterclaim awarded to KAA.

Key legal issues

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01

Adverse possession against public land held by a state agency

Holding

The claim failed because the suit property was public land registered in favour of a state agency and adverse possession does not lie against the Government under Section 42 of the Limitation of Actions Act read with Article 62(1)(b) of the Constitution.

Reasoning

The court held that land registered in favour of the Kenya Airports Authority, a state agency, is public land under Article 62(1)(b) of the Constitution. Section 42 of the Limitation of Actions Act bars adverse possession claims against the Government. Additionally, the Grant was registered on 14th June 2002 and the suit filed on 25th April 2014, before 12 years had elapsed, so the claim had not crystallised.

p. 3
02

Uncontroverted defence evidence on the Counterclaim

Holding

With the Plaintiffs absent and no cross-examination, the defence evidence remained unchallenged and the Defendant proved its Counterclaim on a balance of probability.

Reasoning

The Plaintiffs failed to prosecute their suit and did not attend or oppose. The sole defence witness produced the Grant CR 35747 and testified that squatters had encroached, were valued in 2012 and compensated in 2014-2015, with only the 1st Plaintiff remaining. In the absence of cross-examination the evidence stood uncontroverted, satisfying the balance of probability standard for the declaratory and injunctive relief sought.

p. 3

Legal principles established

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  • Adverse possession cannot be asserted against the Government or a state agency in respect of public land.
  • A claim for adverse possession crystallises only after 12 years from registration of the owner's title.

Court orders

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  1. 1.Dismissal of the Plaintiffs' suit for want of prosecution (ordered on 10th July 2018)
  2. 2.Judgment entered for the Defendant as prayed in the Counterclaim
  3. 3.The Defendants to have the costs of both the Plaintiffs' suit and its Counterclaim

Authorities

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Legislation

  • Land Registration ActSection 28(e) and/or (h)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 42
  • Kenya Airports Authority Act, Cap 395 of the Laws of Kenyanull
  • Constitution of Kenya, 2010Article 62(1)(b)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the land dispute and the Defendant's Counterclaim

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, "Mohamed Bwana Obo Athman & 24 others v Kenya Airport Authority [2020] KEELC 1203 (KLR)", Case Analysis (2020). ELC Case of 2014 (Portion No. 21 Lamu, CR 35747). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1203/eng@2020-09-25

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