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ELCDismissedOriginating Summons filed 20 August 2013· [2020] KEELC 2864 (KLR)

Kesi Kahindi & 23 others v Philip Kimeu & anor [2020] KEELC 2864 (KLR)

Environment and Land Court
11 March 2020
MSMunyao Sila
2,813 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Mombasa court dismissed 23 squatters' land ownership claim because they couldn't prove 12 years of continuous occupation, and the judge found their evidence dishonest.

What this practically means

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Executive summary

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The applicants, acting in person, filed an Originating Summons on 20 August 2013 seeking to be declared owners of Plot No.1/MN/190 at Bombolulu, Mombasa, through adverse possession, after being served with a notice to remove illegal structures. The supporting affidavit sworn by Ngema Tsuma claimed the applicants had lived on the land as squatters for over 40 years. The respondents, registered proprietors who purchased the land on 17 December 2007, resisted the claim, asserting the land was bare when they bought it and that the structures were hastily erected. Eleven applicants testified, giving varying dates of entry between 1995 and 2000, while the 1st respondent testified for the respondents and produced photographs and NSSF records. The court directed a site visit by the Deputy Registrar, whose report described the property as extremely bushy, with freshly built houses, no paths, no children, and no signs of habitation. The court found the affidavit's claim of over 40 years' occupation untrue, observed that several applicants were children or teenagers in 2001 (the latest date possession could have commenced for a 2013 suit), and thus lacked the animus possidendi. Concluding that the applicants failed to prove peaceful, open and uninterrupted possession for at least 12 years on a balance of probabilities, the court dismissed the suit with costs to the respondents and granted them liberty to apply for the applicants' eviction.

Key legal issues

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01

Whether the applicants proved 12 years' continuous adverse possession of Plot No.1/MN/190

Holding

The suit was dismissed; the applicants failed to prove possession for the requisite 12-year period before filing suit in 2013, and their evidence lacked credibility

Reasoning

The court noted the suit was filed in 2013, so possession had to commence by 2001 at the latest. Oral evidence showed many applicants were children or teenagers in 2001 (e.g. PW-11 was born in 1996 and was only about 5 years old in 2001), incapable of the requisite animus possidendi. The supporting affidavit's claim of over 40 years' occupation was demonstrably untrue, denting the credibility of the whole case. The Deputy Registrar's site visit report showed a bushy, undeveloped parcel with freshly built structures and no signs of habitation, corroborating the respondents' evidence that the land was bare when purchased in 2007.

p. 3

Legal principles established

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  • To succeed in a claim for adverse possession, a claimant must prove peaceful, quiet, open possession of the land for a continuous and uninterrupted period of at least 12 years

Court orders

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  1. 1.The suit is dismissed
  2. 2.Costs of the suit awarded to the respondents
  3. 3.The respondents are at liberty to apply for the eviction of the applicants
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over a claim for adverse possession (Originating Summons)

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, "Kesi Kahindi & 23 others v Philip Kimeu & anor [2020] KEELC 2864 (KLR)", Case Analysis (2020). Originating Summons filed 20 August 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2864/eng@2020-03-11

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