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ELCDismissedELC Case No. 232 of 2017 (O.S)· [2020] KEELC 3431 (KLR)

Jackson Majinga Vilili & 4 others v Royal Nairobi Golf Club; Kenya Urban Roads Authority & 2 others [2020] KEELC 3431 (KLR)

Environment and Land Court
10 February 2020
3,284 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Five occupants lost their bid to claim seven acres of golf club land through adverse possession because they couldn't prove exclusive possession.

What this practically means

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Executive summary

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The five Plaintiffs filed an Originating Summons under Sections 7, 13, 37 and 38 of the Limitation of Actions Act seeking to be declared owners of seven acres out of L.R. No. 209/14042 IR No. 87503, an 80.96-hectare parcel leased to the Royal Nairobi Golf Club for fifty years from 1/11/1999. They claimed continuous, open occupation since 1980, with schools, churches and residential and commercial developments, and sought declarations of ownership and trust, transfer orders and injunctions. Through an Amended Originating Summons they added Interested Parties and sought compensation for the portion taken up in 2018 for the Ngong Road – Kibera – Langata Link Road. The Defendant conceded occupation but asserted the occupation was with its permission. The 1st Interested Party contended the road corridor was public land incapable of adverse possession. The court accepted that adverse possession may be claimed over a portion of registered land, citing Johnson Kinyua v Simon Gitura Rumuri, but held that time could only run from the Defendant's registration on 1/11/1999, since the land was previously government land. Critically, the Plaintiffs' own evidence showed hundreds of occupants and thousands of tenants, and the suit was not brought on behalf of all occupants; they failed to prove exclusive possession of the seven acres or the exact portions they occupy. The trust claim and compensation claim also failed for want of proof. The Originating Summons was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Plaintiffs proved adverse possession of the seven acres

Holding

Claim failed for want of proof of exclusive, continuous possession for twelve years from the date of the Defendant's registration

Reasoning

The Defendant was registered as lessee only from 1/11/1999, so time could run only from that date. The Plaintiffs' own evidence showed about 300 occupants plus roughly 2000 tenants, and the suit was not brought on behalf of all occupants. The Plaintiffs did not lead evidence proving the exact size of the portions they occupy, defeating the requirement of exclusive possession for the statutory period.

p. 4
02

Whether adverse possession may be claimed over a portion of the registered owner's land

Holding

Yes; a portion may be claimed, but only to the extent of the claimant's exclusive control

Reasoning

Relying on the Court of Appeal decision in Johnson Kinyua v Simon Gitura Rumuri, the court held that a claimant may claim a portion rather than the whole parcel, but the claimant is limited to the portion over which exclusive control is proved, which the Plaintiffs failed to establish here.

p. 3
03

Whether the Plaintiffs were entitled to compensation for the land taken for the link road

Holding

No; compensation not proved

Reasoning

Under the Land Act compensation is payable to persons whose interests in compulsorily acquired land are determined, but the Plaintiffs did not prove that the land they occupy was taken up by the road or that their structures were demolished by the Interested Parties.

p. 3
04

Whether the Defendant holds the land in trust for the Plaintiffs

Holding

Trust not proved

Reasoning

The court found that the Plaintiffs produced no evidence establishing a trust in their favour over the Suit Property.

p. 4

Legal principles established

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  • A claimant for adverse possession may claim a portion of land registered in a defendant's name and does not have to claim the whole parcel
  • Time in adverse possession runs only from the date the defendant was registered as owner of the land, not before

Court orders

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  1. 1.The court declined to grant the orders sought in the Amended Originating Summons filed on 8/10/2019
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22Sections 7, 13, 37, 38, 41
  • Civil Procedure Rules, 2010Order 37 Rules 7 and 8
  • Constitution of Kenya, 2010Articles 62 and 64
  • Land ActCompensation provisions (not specified)
  • Physical Planning ActDevelopment plan approval 42/32/2012/01 (not specified)

Cases cited (1)

  • Johnson Kinyua v Simon Gitura Rumuri
    [2011] eKLR
Jurisdiction invoked
Sections 7, 13, 37 and 38 of the Limitation of Actions Act, Cap 22, and Order 37 Rules 7 and 8 of the Civil Procedure Rules, 2010

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, "Jackson Majinga Vilili & 4 others v Royal Nairobi Golf Club; Kenya Urban Roads Authority & 2 others [2020] KEELC 3431 (KLR)", Case Analysis (2020). ELC Case No. 232 of 2017 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3431/eng@2020-02-10

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