Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedMalindi ELC No. 159 of 2011· [2020] KEELC 3940 (KLR)

Salim Abdalla Bakshwein v Erastus Juma King’ale & 20 others [2020] KEELC 3940 (KLR)

Environment and Land Court
23 January 2020
JOJ. O. Olola
3,242 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

#

A Malindi court ordered 85 squatters evicted because they could not prove 12 years of uninterrupted occupation or identify the exact land each claimed.

What this practically means

#

Executive summary

#
The Plaintiff, registered proprietor of Portion No. 150 Malindi measuring about 304 acres, sued 21 Defendants for eviction and a permanent injunction, alleging incitement and invasion of his land. The Defendants, describing themselves as descendants of slaves settled on the land before independence, denied his title as irregular and asserted long, continuous occupation. On 26th June 2013 some of the same parties filed an Originating Summons (Malindi HCCC No. 111 of 2013) claiming 85 (or 25) plot-specific declarations of adverse possession; on 1st September 2014 the suits were consolidated with the Originating Summons treated as a Counterclaim. At trial the Plaintiff testified with his son about a fenced ranch, wildlife sanctuary and restaurant enterprise on the land, though he conceded in cross-examination that he had no documentary evidence of the fence, animals or restaurant. The Defence called three witnesses who claimed lifelong occupation, with burials of parents on the land. The court applied Mbira v Gachuhi and Mtana Lewa on the ingredients of adverse possession. It found the Defendants' assertions of decades-long occupation unsupported: official correspondence from 2009 and 2011 referred to squatters and recent encroachment; DW2 admitted the locals had cut down the perimeter fence; and PW2 placed the fence's existence up to about 2002, making pre-fence residence on the suit property impossible. The Plaintiff, moreover, had never neglected to act against encroachers. The Counterclaim also failed because the claimants did not specify the portions of the 304 acres each claimed. The court allowed the Plaintiff's suit as prayed, dismissed the Counterclaim, and awarded costs to the Plaintiff.

Key legal issues

#
01

Whether the Defendants/Counterclaimants acquired title by adverse possession

Holding

The claim failed; the Defendants' occupation was not shown to be continuous, peaceful and uninterrupted for the statutory 12 years, and the Plaintiff never neglected or omitted to take action against encroachers

Reasoning

The Defendants alleged occupation since before independence but contemporaneous correspondence (from the District Officer in 2009 and the Provincial Commissioner in 2011) referred to squatters and recent encroachment into a fenced sanctuary area. DW2 admitted the locals cut down the fence, and PW2 placed the fence's existence up to about 2002, meaning occupation within the suit property could not predate the fence's destruction. The Plaintiff also actively reported and sought action against the encroachers.

p. 4
02

Whether the 85 Claimants could succeed without identifying specific portions claimed

Holding

They could not; each claimant was required to lay claim to and prove possession of a specific portion

Reasoning

The Counterclaim did not specify the areas of the 304-acre parcel to which each claimant was entitled. The court held it was essential for each claimant to identify a specific portion and prove exclusive, peaceful and continuous possession of it for the requisite period. This failure alone defeated the adverse possession claim.

p. 4
03

Whether the Plaintiff proved his ownership and entitlement to eviction and injunction

Holding

Yes, on a balance of probabilities; the Plaintiff's registration was effectively undisputed and the defence of irregular acquisition was abandoned

Reasoning

The Statement of Defence cast doubt on the Plaintiff's title, but from the pleadings and testimony it was clear this was no longer in contention. The Plaintiff proved registration of Portion No. 150 Malindi, and evidence of encroachment was overwhelming, entitling him to the eviction order and permanent injunction sought in the Plaint.

p. 4

Legal principles established

#
  • A person seeking title by adverse possession must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use of the land for the statutorily prescribed period without interruption
  • Adverse possession arises where a person takes possession and asserts rights over land and the titled owner omits or neglects to take action for 12 years in Kenya
  • Co-claimants in a consolidated adverse possession claim must each lay and prove a claim to a specific portion of the property

Court orders

#
  1. 1.The Plaintiff's suit is allowed as prayed (eviction and permanent injunction in respect of Portion No. 150 Malindi)
  2. 2.The Defendants'/Claimants' Counterclaim is dismissed

Authorities

#

Cases cited (2)

  • Mbira –vs- Gachuhi
    (2002) EA 137
  • Mtana Lewa –vs- Kahindi Ngala Mwamgandi
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over title to and possession of land (Portion No. 150 Malindi); suits consolidated on 1st September 2014 with the Originating Summons treated as a Counterclaim

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Salim Abdalla Bakshwein v Erastus Juma King’ale & 20 others [2020] KEELC 3940 (KLR)", Case Analysis (2020). Malindi ELC No. 159 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3940/eng@2020-01-23

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