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ELCDismissedMalindi ELC Case (Plaint filed 2nd April 2015)· [2020] KEELC 1875 (KLR)

Thomas Hinzano Ngonyo v William Kombe & 2 others [2020] KEELC 1875 (KLR)

Environment and Land Court
25 June 2020
4,424 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Watamu plot owner lost his eviction case because the occupants were on the land long before his title existed, yet the occupants also lost their adverse possession claim.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Plot No. 698 Watamu since March 2012, sued the three Defendants for declarations that they were trespassers or licensees, ground rent, an injunction, removal of structures and aggravated damages for trespass, alleging they entered the land in 2008. Each Defendant denied the Plaintiff's title, asserting occupation since the 1970s and 1980s, and Counterclaimed for declarations of ownership by adverse possession; the 2nd Defendant also pleaded res judicata based on a prior suit, Malindi SRMCC No. 198 of 2009, filed by the Plaintiff's relative under a power of attorney. The Court held the prior suit, having never been heard on the merits, could not support a plea of res judicata. On the evidence, including correspondence from 1992 onwards and the Commissioner of Lands' correspondence concerning the acute squatter problem in the area, the Court found the Defendants were in occupation long before the Plaintiff's predecessor, Bora Afya Omar Bora Afya, acquired any interest in 2005, and that the Plaintiff purchased with full notice of that occupation. The allocation by the Municipal Council of Malindi disregarded the occupants, and the Plaintiff and his predecessor never took possession or complied with the conditions of allotment. The Plaintiff was held to have no good title and his suit failed. The Defendants' adverse possession Counterclaims also failed because the land was Government land, against which adverse possession cannot run under Section 41 of the Limitation of Actions Act. Both the suit and the Counterclaims were dismissed with no order as to costs on 25th June 2020.

Key legal issues

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01

Whether the Plaintiff proved trespass by the Defendants

Holding

Trespass not proved; the Defendants were in occupation long before the Plaintiff's predecessor acquired any interest in the land

Reasoning

The Plaintiff bought the property in 2012 with full knowledge that the Defendants were already in occupation, having entered around 2008 or earlier. Correspondence from 1992-1999, including a Memorandum of Land Grievance and the Commissioner of Lands' letter on the squatter problem, confirmed longstanding occupation. The Municipal Council of Malindi admitted the allocation did not take account of people already on the ground. The Plaintiff's predecessor never took possession.

p. 5
02

Whether the Plaintiff has a good title to the suit property

Holding

The Plaintiff does not have a good title; his predecessor's allocation and title were irregular and the conditions of allotment were never complied with

Reasoning

The land was government land alienable under the repealed Government Lands Act, Cap 280. Alienation under Part III required an application through the County Council, an Allocation Committee, and a ground report on occupation. No evidence was produced that the predecessor applied for allocation or complied with allotment conditions, and he failed to take possession. The Council admitted the allocation disregarded persons already on the ground.

p. 5
03

Whether the suit is res judicata given the prior Malindi SRMCC No. 198 of 2009

Holding

The prior suit was not heard on the merits and cannot found a plea of res judicata

Reasoning

Valentine Hinzano Ngonyo, the Plaintiff's relative, had sued the Defendants in 2009 under a power of attorney seeking similar eviction orders. Neither party produced the lower court proceedings and it was unclear how the suit terminated - the Plaintiff said it was withdrawn for want of jurisdiction, the Defendants said it was dismissed for want of prosecution. In either event, it was not heard on its merits.

p. 4
04

Whether the Defendants acquired the portions they occupy by adverse possession

Holding

The Counterclaims for adverse possession fail because the land is government land against which adverse possession cannot run

Reasoning

Although the Defendants claimed occupation since the 1970s and 1980s, the correspondence showed they knew the land was Government land and were petitioning to be allocated it as squatters. Section 41 of the Limitation of Actions Act excludes public land from the Act's application, so time could not run in their favour. Their Counterclaims were therefore unmerited.

p. 6

Legal principles established

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  • Adverse possession requires possession, assertion of rights, and omission by the title holder to act for 12 years in Kenya
  • Adverse possession cannot accrue against land owned by the Government; Section 41 of the Limitation of Actions Act excludes public land
  • A suit previously terminated without being heard on the merits does not render a subsequent suit res judicata

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The 1st, 2nd and 3rd Defendants' Counterclaims are dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Government Lands ActCap 280 (repealed), Part III
  • Limitation of Actions ActSection 41

Cases cited (1)

  • Mtana Lewa –vs– Kahindi Ngala Mwamgandi
    (2005) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to ownership, title and occupation of land

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, "Thomas Hinzano Ngonyo v William Kombe & 2 others [2020] KEELC 1875 (KLR)", Case Analysis (2020). Malindi ELC Case (Plaint filed 2nd April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1875/eng@2020-06-25

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