Michael Maling’a Mbito v Florence Kethleen Law [2021] KEELC 556 (KLR)
The bottom line
#The Kitale Environment and Land Court gave a man 9 acres he had openly occupied for nearly 30 years, proving long occupation can defeat a registered owner's title in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff acquired 9 acres of the suit land by adverse possession
Yes - the plaintiff proved actual, open, continuous, peaceful and uninterrupted possession since 1991, adverse to the registered owner, exceeding the statutory 12-year period
The plaintiff testified his grandfather bought 9 acres in 1979, was bequeathed the land in 1990 and took possession in 1991, amounting to 28 years by 2019. The defendant, served by substituted service, neither entered appearance nor filed a defence, so the evidence was uncontroverted. Possession satisfied the nec vi, nec clam, nec precario standard and the four elements drawn from the case law. The court found the defendant dispossessed and her possession discontinued for the statutory period.
Whether the suit should have been brought under the repealed Registration of Titles Act
The court treated the misjoinder of the repealed statute as a curable procedural technicality under Article 159(2)(d) and determined the suit on its substance
The Registration of Titles Act was repealed by the Land Registration Act, 2012, and by Section 105(b) existing titles are deemed titles under the new law. Strictly, the suit should have invoked the new regime, but the court overlooked this technicality in favour of substantive justice, consistent with the constitutional command that justice be administered without undue regard to procedural technicalities.
Whether the defendant's title should be cancelled
No - registration as proprietor of the 9 acres was ordered instead, since the applicable land regime does not entail cancellation of title but entry of proprietorship in the register
Prayer (b) sought cancellation of the defendant's registration. However, the suit land falls under a registration regime that does not provide for cancellation of title; the correct remedy is entry of the plaintiff's proprietorship in the register. The court therefore granted the relief in modified form, registering the plaintiff as proprietor of the 9 acres he occupies.
Legal principles established
#- The combined effect of Sections 7, 13 and 17 of the Limitation of Actions Act is to extinguish the title of a proprietor of land in favour of an adverse possessor at the expiry of 12 years of adverse possession
- A claimant must prove exclusive possession of the land openly and as of right without interruption for 12 years
- Proof of adverse possession requires possession that is nec vi, nec clam, nec precario (no force, no secrecy, no evasion)
Court orders
#- 1.A declaration that the Plaintiff has been in open and continuous, peaceful and uninterrupted possession of nine (9) acres out of Land Reference Number 11005 IR No. 18979
- 2.A declaration that the Plaintiff has acquired by way of adverse possession nine (9) acres out of Land Reference Number 11005 IR No. 18979 and is entitled to be declared the owner of the 9 acres
- 3.The Plaintiff be registered as the proprietor of the 9 acres he occupies within Land Reference Number 11005 IR No. 18979
- 4.Each party shall bear their own costs
- Jurisdiction invoked
- Article 159(2)(d) of the 2010 Constitution; Order 37 Rules 6(1), 7(1) and 8 of the Civil Procedure Rules; Sections 27 and 38 of the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nyachieo v Ogwankwa[2022] KEELC 13661 (KLR)19 Oct 2022applied
Cite this brief
#Cite this brief
Caselaw, "Michael Maling’a Mbito v Florence Kethleen Law [2021] KEELC 556 (KLR)", Case Analysis (2021). Originating Summons dated 27/2/2019 (Kitale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/556/eng@2021-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.