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ELCDismissedOriginating Summons dated 21st October, 2009· [2020] KEELC 2604 (KLR)

Samuel Kimintae Mparo & 5 others v Mathare Investments & Properties Limited [2020] KEELC 2604 (KLR)

Environment and Land Court
15 May 2020
5,881 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The six Plaintiffs, the widow-children family of the late Joseph Kimintae Ole Mparo, sought by Originating Summons dated 21st October 2009 to be declared entitled to Kajiado/Kaputiei-South/45 (approximately 999.6 acres) by adverse possession and to be registered in place of the Defendant company. They claimed continuous, exclusive occupation since 1969, with homes, livestock and cultivation, asserting the Defendant's title was extinguished by 1994. The Defendant's directors filed no affidavit, but its surveyor (DW1) testified that the land was vacant when he beaconed 400 plots in 1986 and on visits in 1987, 1989, 1991 and 2001, seeing structures only in 2009. DW2, the local Assistant Chief who had sworn a 2010 affidavit for the Defendant but denied it in court (later admitting through his advocate he had retracted it), deposed that Ole Shani took possession in the late 1970s and that the Plaintiffs' family only returned in 2004 to under four acres. The court applied sections 7 and 38(1) of the Limitation of Actions Act and the nec vi, nec clam, nec precario standard, found the family was evicted in the late 1970s and that possession was interrupted, drew an adverse inference from the widows' failure to testify, and condemned the Plaintiffs' concealment of a parallel adverse possession suit over the neighbouring parcel 44. The Originating Summons was dismissed with costs.

Key legal issues

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01

Whether the Plaintiffs established adverse possession of Kajiado/Kaputiei-South/45 for over twelve years

Holding

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

Reasoning

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.

p. 6
02

The credibility of the Plaintiffs' evidence and the weight of DW2's affidavit

Holding

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

Reasoning

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.

p. 6
03

Concealment of a parallel adverse possession suit over the neighbouring parcel

Holding

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

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Plaintiffs' Originating Summons dated 21st October, 2009 is dismissed with costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSections 13 and 17 (as referred to in Benjamin Kamau Murima)
  • Registered Land Act Chapter 300

Cases cited (6)

  • Virginia Wanjiku Mwangi vs. David Mwangi Jotham Kamau
    (2013) eKLR
  • Kimani Ruchine vs. Swift Rutherford & Co. Ltd
    [1980] KLR
  • Teresa Wachuka Gachira vs. Joseph Mwangi Gachira
    (2009) eKLR
  • Benjamin Kamau Murima & Others vs. Gladys Njeri
    Civil Appeal No. 213 of 1996
  • Karnataka Board of Wakf vs. Government of India & Others
    (2004) 10 SCC 779
  • Samuel Kimintae Mparo & 5 others vs. Arvind Kanji Patel, Kajiado ELC Case No. 662 of 2017 (O.S)
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

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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, "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.