Samuel Kimintae Mparo & 5 others v Mathare Investments & Properties Limited [2020] KEELC 2604 (KLR)
The bottom line
#A Kenyan land court dismissed a family's 12-year adverse possession claim because their occupation of the 999-acre farm was interrupted, not continuous.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established adverse possession of Kajiado/Kaputiei-South/45 for over twelve years
The claim failed. The court found the Plaintiffs' family was evicted in the late 1970s, the land lay vacant until 2004, and the Plaintiffs returned to occupy only a small portion (not more than six acres), so possession was interrupted and not adequate in continuity or extent
The court relied on the affidavit of DW2, the Assistant Chief, who swore that Ole Shani took possession in the late 1970s, employed him as farm manager, and that there was no human activity on the land between 1987 and 2004. This tallied with DW1's surveyor evidence that the land was vacant when beaconed in 1986 and visited in 1987, 1989, 1991 and 2001. The failure of the 2nd and 3rd Plaintiffs, the deceased's widows, to testify also undermined the claim.
The credibility of the Plaintiffs' evidence and the weight of DW2's affidavit
DW2 denied on oath swearing the affidavit filed on 19th February 2015, but through his advocate's letter of 13th May 2019 admitted having sworn and retracted it without giving reasons; the affidavit therefore remained on record as evidence and represented the correct position
The court held that a retracted affidavit remains part of the record. DW2's sworn depositions corroborated DW1's evidence and the photographs produced by the Plaintiffs. The court also drew an adverse inference from the failure by the 2nd and 3rd Plaintiffs - the widows with the history of settlement - to testify or file affidavits, concluding their evidence would have been prejudicial to PW1-PW4's account.
Concealment of a parallel adverse possession suit over the neighbouring parcel
The court discovered that the same Plaintiffs had filed a similar adverse possession claim over Kajiado/Kaputiei-South/44 in Kajiado ELC Case No. 662 of 2017 (O.S) without disclosing it in either suit; this dishonesty further discredited their claim of continuous occupation
PW1 gave word-for-word the same evidence in both matters, claiming twelve years' possession of each of two parcels arising from one sub-division, while asserting in each case ignorance of the other parcel. The court treated the concealment as a material non-disclosure that showed the Plaintiffs never lived on either parcel as pleaded.
Legal principles established
#- A party claiming adverse possession must prove possession that is peaceful, open and continuous - nec vi, nec clam, nec precario - and adequate in continuity, publicity and extent to be adverse to the true owner
- The combined effect of sections 7, 13 and 17 of the Limitation of Actions Act is to extinguish the title of the registered proprietor in favour of an adverse possessor
- An affidavit on record which is purportedly retracted without reasons remains part of the court record and evidence
Court orders
#- 1.The Plaintiffs' Originating Summons dated 21st October, 2009 is dismissed with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under an Originating Summons for adverse possession (Limitation of Actions Act, sections 7 and 38(1))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kimintae Mparo & 5 others v Mathare Investments & Properties Limited [2020] KEELC 2604 (KLR)", Case Analysis (2020). Originating Summons dated 21st October, 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2604/eng@2020-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.