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ELCAllowedOriginating Summons dated 4th July 2008, amended 28th June 2016· [2021] KEELC 2967 (KLR)

Khairunissa Hussein Haji Ladha & another v Suleiman Abdulrehman & others [2021] KEELC 2967 (KLR)

Environment and Land Court
3 June 2021
CYC.K. Yano
2,844 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The applicants, daughters of the late Hussein Haji Ladha, brought an amended originating summons seeking a declaration that they were entitled to PLOT NO. MOMBASA/BLOCK XXII/155 and to be registered as its proprietors by adverse possession. They contended that their father bought the property, that although it was registered in the names of his brothers and partners, the family partnership was dissolved in 1981 and a Deed of Partition of 26th March 1984 allocated the property to their father, who remained in exclusive, quiet and uninterrupted occupation with his family, paying rates and developing the property, for well over twelve years without any attempt at eviction. The 1st-3rd respondents maintained that the property was family property registered in three brothers' names since 1953 and that the applicants had not established adverse possession; the 4th and 5th respondents claimed protection as purchasers for value who obtained titles in 2015. The court framed two issues: whether the 1st-3rd respondents' rights were extinguished by limitation, and whether the applicants had acquired prescriptive rights. Applying Sections 7 and 17 of the Limitation of Actions Act and the Court of Appeal authorities on the ingredients of adverse possession, the court found the applicants and their father had been in notorious, exclusive and uninterrupted occupation for more than twenty years with the registered owners' knowledge, extinguishing the respondents' titles. The subsequent transfers were null and void ab initio. The originating summons was allowed with each party bearing their own costs given the parties' family relationship.

Key legal issues

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01

Whether the applicants acquired title by adverse possession

Holding

Yes. The applicants and their father were in open, notorious, continuous and uninterrupted possession since the dissolution of the partnership in 1981 and the Deed of Partition of 1984, for well over twelve years, with the knowledge of the registered owners who took no steps to evict them. The registered owners' titles were extinguished and the applicants acquired prescriptive rights.

Reasoning

The court applied Section 7 and Section 17 of the Limitation of Actions Act and the Court of Appeal tests in Kweyu v Omuto, Wambugu v Njuguna and Mtana Lewa. Possession must be nec vi, nec clam, nec precario, continuous, and with the owner's actual or constructive knowledge. The applicants' family occupied the property exclusively after the other brothers moved out, paid rates, developed and renovated the property without permission or interruption for over twenty years. The subsequent transfers of the property in 2008 and 2015 were of no legal effect because the respondents no longer had any title to pass.

p. 3
02

Validity of the subsequent transfers to the 4th and 5th respondents

Holding

The transfers to First Burton Development Limited and then to the 4th and 5th respondents were null and void ab initio because the respondents' titles had already been extinguished.

Reasoning

The court held that the 2008 transfer by Suleiman Abdulrehman and the subsequent 2015 transfer to the 4th and 5th respondents were of no legal effect since the respondents' titles had already been extinguished by limitation and they had no good title to pass. A person with no title cannot pass title, so the derivative purchasers acquired nothing.

p. 3

Legal principles established

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  • A person with no title cannot pass title to another; transfers by a registered proprietor whose title has been extinguished by adverse possession are null and void ab initio.
  • Title to land is extinguished at the expiry of the limitation period prescribed by the Limitation of Actions Act.

Court orders

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  1. 1.The amended originating summons dated 28th June 2016 and filed on 13th July 2016 is allowed
  2. 2.The applicants are entitled to and should be registered as proprietors of the property known as PLOT NO. MOMBASA/BLOK XXII/155 by virtue of adverse possession
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 18

Cases cited (3)

  • Kweyu –v- Omuto
    (1999) KLR 709
  • Wambugu -v- Njuguna
    (1983) KLR 173
  • Mtana Lewa –v- Kahindi Ngala Mwangandi
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction under Section 7 of the Limitation of Actions Act (Cap 22) - claim for title by adverse possession by originating summons

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, "Khairunissa Hussein Haji Ladha & another v Suleiman Abdulrehman & others [2021] KEELC 2967 (KLR)", Case Analysis (2021). Originating Summons dated 4th July 2008, amended 28th June 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2967/eng@2021-06-03

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