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ELCDismissedOriginating Summons dated 16th December 2008 (Malindi)· [2021] KEELC 4618 (KLR)

Mando Dzombo Mangi & 22 others v Salim Abdalla Bakshwein & another [2021] KEELC 4618 (KLR)

Environment and Land Court
29 January 2021
JOJ. O. Olola
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Malindi dismissed 23 families' claim to own Malindi land through adverse possession because they could not prove 12 years of uninterrupted occupation.

What this practically means

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Executive summary

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By an Originating Summons dated 16th December 2008, 23 Plaintiffs sought declarations that they had acquired by adverse possession their respective plots within Portion No. 121 Malindi (sub-divisions 10585, 10586 and 10587), having allegedly occupied the land since the late 1950s, and sought to be registered as proprietors. The Defendants, Salim and Ahmed Abdalla Bakshwein, denied uninterrupted occupation, asserted prior suits and criminal complaints against the Plaintiffs, and filed a Counterclaim for vacant possession and costs. The 2nd Defendant passed away and the suit against him was withdrawn in May 2019. At trial before the court (trial having commenced before Justice Meoli), only the Plaintiffs testified; the Defendant called no witnesses and did not prosecute the Counterclaim. The court, applying Mtana Lewa v Kahindi Ngala Mwagandi, Wambugu v Njuguna and Mbira v Gachuhi, held that adverse possession requires proof that the title holder was dispossessed or discontinued possession for the statutory 12-year period. It found little evidence placing the Applicants on the land before 2008; the Plaintiffs themselves were charged with forcible detainer in 2008 and 2009; they conceded occupying only a small portion of the 85.85-acre property; and the Defendant had surveyed and sub-divided the land shortly before the suit. The Plaintiffs also failed to exhibit the Defendant's title and impugned it, and did not plead with precision the portions occupied. The suit was dismissed, no orders were made on the unprosecuted Counterclaim, and each party was ordered to bear their own costs.

Key legal issues

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01

Whether the Applicants proved adverse possession of Portion No. 121 Malindi

Holding

The claim failed; there was no evidence placing the Applicants on the land prior to 2008, and the Applicants conceded occupying only a small portion of the land

Reasoning

The Applicants asserted occupation since the 1950s but the only evidence was their own testimony, which the court found insufficient. The Defendant's ability to survey and sub-divide the land and the criminal charges for forcible detainer in 2008 indicated occupation was not adverse for the statutory period. The Applicants themselves doubted the validity of the Defendant's title rather than admitting it, undermining the claim.

p. 4
02

Whether the Defendant was dispossessed or discontinued possession

Holding

The court was not so persuaded

Reasoning

Possession requires that the title holder be dispossessed or have discontinued possession for the statutory period. Here the Defendant surveyed and sub-divided the land shortly before the suit, and the Applicants admitted occupying only a small section, so there was no dispossession or discontinuance for 12 years.

p. 4
03

Whether the Defendant was entitled to vacant possession on the Counterclaim

Holding

No orders made; the Counterclaim was not prosecuted

Reasoning

The Defendant did not call any evidence in support of the Counterclaim for vacant possession, so it could not be granted. The court declined to enter judgment on it.

p. 5

Legal principles established

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  • At the lapse of twelve years, the registered proprietor of a parcel of land is barred from instituting an action to exert his title against an adverse possessor
  • A claimant in adverse possession must prove the title holder was dispossessed or discontinued possession for the statutory period
  • A party claiming adverse possession must plead and prove with precision the exact portions of land occupied

Court orders

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  1. 1.The Plaintiffs' suit for a declaration of adverse possession is dismissed
  2. 2.No orders made on the Defendant's Counterclaim, which was not prosecuted
  3. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Penal CodeSection 91
  • Limitation of Actions Actimplied statutory period of 12 years

Cases cited (3)

  • Mtana Lewa –vs- Kahindi Ngala Mwagandi
    (2005) eKLR
  • Wambugu –vs- Njuguna
    (1993) KLR 173
  • Mbira –vs- Gachuhi
    (2002) EA 137
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act for a claim of adverse possession of land (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, "Mando Dzombo Mangi & 22 others v Salim Abdalla Bakshwein & another [2021] KEELC 4618 (KLR)", Case Analysis (2021). Originating Summons dated 16th December 2008 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4618/eng@2021-01-29

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