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ELCDismissedOriginating Summons (Land) Case No. 249 of 2009 (number not stated in judgment)· [2021] KEELC 1031 (KLR)

Kabu Mumba Mudachi & 11 others v Pwani Jezozhum Company Limited; Obed Eliphas Njiru & 6 others (Necessary Parties) [2021] KEELC 1031 (KLR)

Environment and Land Court
10 November 2021
MSMunyao Sila
1,996 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Mombasa court dismissed squatters' bid for land title by adverse possession because the original title no longer exists in the land register.

What this practically means

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Executive summary

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This is a judgment of the Environment and Land Court at Mombasa (Munyao Sila, J) delivered on 10 November 2021 in an Originating Summons filed on 5 November 2009 under Sections 37 and 38 of the Limitation of Actions Act, Cap 22. The plaintiffs, suing on their own behalf and on behalf of squatters/residents of Vikwatani Estate (said to number over 5,000), claimed title by adverse possession to CR No. 338, Subdivision No. 830/II/MN (Original No.155/II/MN), measuring approximately 350 acres. They asserted occupation since the 1950s-1960s. The defendant's evidence (through its late director, Newton Kogi Kiburi) was that the land was purchased in 1987, subdivided pursuant to an approved scheme, and that the original title under the repealed Land Titles Act was surrendered in March 1990 and converted to the Registered Land Act regime through Gazette Notice No. 173 of 5 April 1990, giving rise to titles Kisauni/Kisauni/Block 1-159. Some 7 purchasers were added as necessary parties. A Principal Land Registrar testified that the original title was surrendered and closed and new registers opened. The plaintiffs' own surveyor conceded the title had been closed. Plaintiffs' counsel argued that rates levied on the land proved the title still existed and that certificates of ownership displayed were fake. The court held that the existence of a title is found in the register kept by Land Registrars, not the rates register. On a balance of probabilities, the plaintiffs were seeking adverse possession against a title that no longer exists, which is not competent. The suit was dismissed with costs; it was unnecessary to examine whether possession was peaceful and uninterrupted for 12 years.

Key legal issues

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01

Whether a suit for adverse possession can be maintained against a title that has been surrendered and converted under the Registered Land Act

Holding

The suit fails on that ground alone; one cannot claim a title that no longer exists

Reasoning

The evidence of the Principal Land Registrar, DW-2, established that title CR No. 338, Subdivision No. 830/II/MN, issued under the repealed Land Titles Act, was surrendered and cancelled upon conversion to the Registered Land Act regime via Gazette Notice No. 173 of 5 April 1990. The land was subdivided into Kisauni/Kisauni/Block 1-159, with new registers opened and titles issued to third parties. The plaintiffs' own surveyor conceded the title was closed. The plaintiffs' submissions, including reliance on the rates register and allegations of fake certificates of ownership, did not displace this documentary evidence.

p. 2
02

Whether the rates register can be relied upon to prove existence of title

Holding

No; the register kept by the Land Registrars, not the rates register, is proof of the existence of a title

Reasoning

Plaintiffs' counsel argued that because rates were still levied and the land advertised for sale by the Municipal Council, the original title must still exist. The court rejected this, holding that the rates register cannot override the land register, otherwise the rates register could be manipulated to create ownership. The postal search of 9 October 2008 in fact confirmed conversion of the title to the Registered Land Act regime.

p. 2

Legal principles established

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  • A claim in adverse possession cannot be brought against a title that no longer exists in the register, having been surrendered and converted to the Registered Land Act regime
  • Existence of a title is to be found in the register kept by Land Registrars, not in the rates register

Court orders

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  1. 1.The suit is dismissed
  2. 2.Costs awarded to the defendant

Authorities

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Legislation

  • Limitation of Actions ActSections 37 and 38
  • Land Titles Act
  • Registered Land Act, Cap 300
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act, Cap 22, Laws of Kenya

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, "Kabu Mumba Mudachi & 11 others v Pwani Jezozhum Company Limited; Obed Eliphas Njiru & 6 others (Necessary Parties) [2021] KEELC 1031 (KLR)", Case Analysis (2021). Originating Summons (Land) Case No. 249 of 2009 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1031/eng@2021-11-10

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