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ELCDismissedOriginating Summons dated 19th December 2014· [2021] KEELC 3143 (KLR)

Salim Said Juma & 10 others v Rafiq Mohamed Wali Mohamed Answari & another [2021] KEELC 3143 (KLR)

Environment and Land Court
20 May 2021
CYC.K. Yano
2,376 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Mombasa's Environment and Land Court dismissed eleven people's claim to own land by adverse possession because they proved no continuous 12-year occupation.

What this practically means

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Executive summary

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By originating summons dated 19th December 2014, eleven plaintiffs led by Salim Said Juma sought a declaration that they had acquired 3.60 hectares of Plot No. 137/I/MN by adverse possession and to be registered as owners. They alleged occupation since 1964 (last entry 1992), continuous, open and adverse to the defendants' title. PW1 admitted in cross-examination that the plaintiffs were removed from the land in 2013 before filing suit, that he brought down his own houses, and that he was unaware of prior related litigation. The 2nd defendant, who purchased the property in 2010 from Dr. Lawrence Gikonyo Gathua and became registered proprietor of half the share on 12th November 2011 and the remainder on 17th October 2014, testified the plaintiffs were neighbours who had never occupied the suit land; a valuer and surveyor confirmed the land was vacant and undeveloped, and he cited prior suits (HCCC No.110 of 2006 (OS), HCCC No.123 of 2009 and Constitutional Petition No.136 of 2011) in which some plaintiffs lost similar adverse possession claims. Applying Wambugu v Njuguna, Mtana Lewa v Kahindi Ngala Mwangandi and Githu v Ndeete, the court held the plaintiffs had not proved actual, open, peaceful and continuous possession adverse to the registered owners for twelve years, noting the 2nd defendant's title had not run for that period, and further found the suit res judicata the previous cases. The claim was dismissed with costs to the 2nd defendant.

Key legal issues

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01

Whether the plaintiffs had been in adverse possession of Plot No. 137/I/MN for over twelve years

Holding

No. There was no evidence the plaintiffs were ever in actual possession of the suit land adverse to the defendants or previous owners; the 2nd defendant's title, registered in 2011 and 2014, had not run for twelve years against them

Reasoning

The court applied Wambugu v Njuguna and Mtana Lewa: the claimant must prove dispossession or discontinuance by the owner for the statutory period, with possession neither by force nor stealth nor licence. The plaintiffs admitted being removed in 2013 before filing suit, and PW1 conceded he no longer lived on the premises. Defendant's witnesses (valuer, surveyor, farm worker) confirmed the land was vacant and undeveloped in 2010-2012. The claim therefore failed on the balance of probabilities.

p. 3
02

Whether the suit was res judicata the previous suits HCCC No.110 of 2006 (OS), HCCC No.123 of 2009 and Constitutional Petition No.136 of 2011

Holding

Yes; the issues are substantially the same claim of adverse possession, previously settled in rulings and judgments in those cases

Reasoning

The 2nd defendant produced pleadings, proceedings and judgments showing some of the plaintiffs had previously litigated adverse possession claims over portions of the same land and lost. The court held it does not matter that the current suit was filed by a few different parties; the issues raised are the same alleged adverse possession claims already determined, so the present suit would still be res judicata those previous cases.

p. 3

Legal principles established

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  • Possession must be peaceful, open, continuous and adverse (nec vi, nec clam, nec precario), adequate in continuity, publicity and extent, actual, visible, exclusive, hostile and continued over the statutory period
  • A mere change of ownership of land occupied by another does not interrupt that person's adverse possession

Court orders

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  1. 1.The plaintiffs' claim for adverse possession is dismissed
  2. 2.Costs of the suit awarded to the 2nd defendant

Authorities

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Legislation

  • Constitution of KenyaArticle 40(1) & (2)
  • Limitation of Actions Actprovisions on adverse possession (not specified)

Cases cited (7)

  • Njuguna Ndato –v- Masai Itumo & 2 Others
    C.A. No.231 of 1999 (Nakuru)
  • Kiptanui A. Chuma –v- Kibor A. Kolil
    (2014) eKLR
  • William Kipnyor Rotich –v- Paul Kiprop Karoney
    (2020) eKLR
  • Josephat Nuhu Alikhana –v- Liyanze Roselyne Ingato
    (2019) eKLR
  • Wambugu –v- Njuguna
    (1983) KLR 173
  • Mtana Lewa –v- Kahindi Ngala Mwangandi
    (2015) eKLR
  • Githu –v- Ndeete
    (1984) KLR 776
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over claims relating to land (adverse possession)

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, "Salim Said Juma & 10 others v Rafiq Mohamed Wali Mohamed Answari & another [2021] KEELC 3143 (KLR)", Case Analysis (2021). Originating Summons dated 19th December 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3143/eng@2021-05-20

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