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ELCPartially AllowedOriginating Summons dated 14th May 2012 (as amended 29th April 2016), Plot No. 130 Malindi· [2020] KEELC 3191 (KLR)

Kachimbiza Katana Mwandenge & 384 others v Fort Properties Limited [2020] KEELC 3191 (KLR)

Environment and Land Court
13 March 2020
JOJ. O. Olola
4,105 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court gave land titles to 240 long-term occupants of a plot by adverse possession, but rejected 145 others who couldn't prove 12 years of occupation.

What this practically means

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Executive summary

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The 385 Plaintiffs brought an Originating Summons claiming to be entitled, by adverse possession of between 12 and 70 years, to be declared proprietors of portions of Plot No. 130 Malindi and to be registered and issued with title certificates in place of the Defendant, Fort Properties Ltd. The Plaintiffs comprised persons who alleged they had purchased portions from the former proprietors and persons who had inherited occupation, pointing to permanent buildings, schools, churches, mosques and graves on the land. The Defendant denied the sales, asserted the land was Government land until its 1990 title, and contended it had always maintained a farmhouse, caretaker and workers, allowing burials only out of compassion. At trial the court found the Defendant's own annexures - a 1992 Chief's letter, a 2000 internal report, and minutes of meetings held in September 2000 with the Provincial Administration and squatter representatives - amounted to a tacit admission that 240 original squatters had long occupied the land before and at the Defendant's acquisition. Those meetings produced a jointly vetted list of 240 original squatters. The court held that possession under purchase or licence is permissive and cannot be adverse, and that the Defendant, having participated in approving the squatters' claims, could not brand them recent trespassers. Judgment was entered for the 240 Plaintiffs on the list, entitling them to registration and certificates of title over the portions they occupied as at 18th September 2000. The claims of the remaining Plaintiffs were not proved. Each party was ordered to bear its own costs. Judgment delivered at Malindi on 13th March 2020 by J.O. Olola, Judge.

Key legal issues

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01

Whether purchasers from the previous proprietors can claim adverse possession

Holding

No; a purchaser or licensee occupies permissively and time does not run adversely against the true owner

Reasoning

The court held that adverse possession requires possession inconsistent with the true owner's title. Where occupation arises from purchase or licence, it is permissive and not adverse, however long it lasts. Since some Plaintiffs claimed to have purchased their portions, their claims could not be sustained as adverse possession.

p. 3
02

Whether the 240 original squatters listed in the September 2000 meetings had proved adverse possession

Holding

Yes; judgment entered for the 240 Plaintiffs on the list, entitled to registration and titles over their occupied portions

Reasoning

The Defendant's own annexures showed squatters existed before its 1987/1990 acquisition, and the Defendant participated in meetings that compiled a list of 240 original squatters and mapped their areas. This amounted to unequivocal approval of their claims, and no evidence showed their possession was permissive. The 12-year period had run without any eviction steps.

p. 5
03

Whether the remaining 145 Plaintiffs proved their claims

Holding

No; their claims failed for want of proof

Reasoning

The court relied on the jointly vetted list of 240 original squatters from the September 2000 meetings as the credible measure of who was on the land. Plaintiffs outside that list, including alleged later entrants, did not demonstrate the requisite continuous, hostile, open possession for 12 years and their claims were dismissed.

p. 5

Legal principles established

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  • Possession under a licence or a purchase from the owner is permissive and cannot found a claim in adverse possession
  • A proprietor who participates in meetings identifying and approving squatters' occupation cannot later contend that the squatters are recent trespassers
  • Adverse possession requires continuous, open and notorious possession for 12 years or more, hostile to and known to the registered owner

Court orders

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  1. 1.Judgment entered for the 240 Plaintiffs identified as per the list prepared at the meeting of 18th September 2000, as prayed in the Plaint
  2. 2.The 240 Plaintiffs are entitled to be registered and issued with Certificates of Title over the portions of the land they occupied as at 18th September 2000
  3. 3.Each Party shall bear their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act (Cap 22) and law of adverse possession (Originating Summons procedure)

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, "Kachimbiza Katana Mwandenge & 384 others v Fort Properties Limited [2020] KEELC 3191 (KLR)", Case Analysis (2020). Originating Summons dated 14th May 2012 (as amended 29th April 2016), Plot No. 130 Malindi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3191/eng@2020-03-13

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