Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedOriginating Summons dated 7th March 2017· [2020] KEELC 1742 (KLR)

Hamisi Makame Hamisi & 2 others v Feraji Bin Hussein Bin Salim [2020] KEELC 1742 (KLR)

Environment and Land Court
9 July 2020
818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Mombasa court ruled that people who openly lived on another person's land for over 12 years now own it, and the registered owner's title is gone.

What this practically means

#

Executive summary

#
The plaintiffs filed an Originating Summons dated 7th March 2017 seeking to be registered as proprietors of Plot No. 513/II/MN CR 686 measuring 8.20 acres in Mombasa, in place of the defendant, on the ground of adverse possession. They claimed over 12 years of uninterrupted, exclusive and peaceful occupation, using the land as their homes and for farming. The 1st and 2nd plaintiffs testified; the 1st plaintiff stated he had lived on the land for some 15 to 16 years and produced the certificate of title in the defendant's name and an official search. The defendant never entered appearance despite substituted service by advertisement in the Standard Newspaper of 14th April 2018, and the suit proceeded ex parte. The court reviewed the settled principles on adverse possession, applying Wambugu v Njuguna and Mtana Lewa v Kahindi Ngala Mwangandi, holding that the claimant must prove dispossession or discontinuance of the title holder's possession for the statutory 12-year period, and that possession must be peaceful, open and continuous (nec vi, nec clam, nec precario). Finding the plaintiffs' uncontroverted evidence sufficient on a balance of probabilities, the court allowed the suit, declared the defendant's interest extinguished, ordered that the plaintiffs be registered as proprietors, and directed that each party bear their own costs. Judgment was delivered at Mombasa on 9th July 2020 by C.K. Yano, J.

Key legal issues

#
01

Whether the plaintiffs proved adverse possession of the suit land

Holding

Yes - the plaintiffs' uncontroverted evidence of exclusive, open possession for over 12 years discharged their burden, and the defendant's title was extinguished

Reasoning

The court restated the doctrine from Wambugu v Njuguna and Mtana Lewa: the claimant must show dispossession or discontinuance of the title holder's possession for the statutory 12-year period, and the possession must be peaceful, open and continuous. The 1st plaintiff testified to 15-16 years of occupation, the plaintiffs lived on the land with their families as their only home, produced the defendant's title, and the evidence was uncontroverted as the defendant never entered appearance despite substituted service.

p. 2

Legal principles established

#
  • Adverse possession requires the title holder to be dispossessed or to have discontinued possession for the statutory period
  • A claimant must prove possession that is peaceful, open and continuous

Court orders

#
  1. 1.That the defendant's interest in PLOT NO. 513/II/MN CR 686 measuring 8.20 acres has been extinguished
  2. 2.That the plaintiffs be registered as the proprietors of all that parcel of land known as PLOT NO. 513/II/MN CR 686 measuring 8.20 acres
  3. 3.Each party to bear their own costs

Authorities

#

Cases cited (2)

  • Wambugu –v- Njuguna
    (1983) KLR 173
  • Mtana Lewa –v- Kahindi Ngala Mwangandi
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over title to land, invoked by Originating Summons for adverse possession

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hamisi Makame Hamisi & 2 others v Feraji Bin Hussein Bin Salim [2020] KEELC 1742 (KLR)", Case Analysis (2020). Originating Summons dated 7th March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1742/eng@2020-07-09

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