Catholic Diocese of Malindi Registered Trustees o/a Kipini Roman Catholic Church v Mohamed Bin Ali Dhiyebi; Ali Mohamed Ali (Interested Party) [2021] KEELC 4659 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established adverse possession of the four acres
Yes - the Plaintiffs openly occupied and developed the four acres from 2001 to 2014 without the Defendant's permission and without the Defendant asserting his title, exceeding the 12-year statutory period
The Plaintiffs entered in 2001, built a permanent church, four houses, a borehole and planted trees, and even leased a portion to Safaricom without seeking anyone's permission - use consistent with ownership. The registered proprietor never took possession; the Defendant only asserted title by demand letter in 2014, some 13 years later. The Defendant's failure to visit or survey the land for years was found negligent and careless. The possession was open, notorious and without consent.
Whether the Defendant was required to prove dispossession or discontinuance of possession
While the Defendant argued this was necessary, the Court found there was no evidence the Defendant ever had possession of the land at all beyond holding title
The Defendant submitted that the Plaintiffs had to prove dispossession or discontinuance of the title holder's possession. The Court accepted the principle but found nothing to dispossess: the deceased proprietor never resided on or took possession of the land between registration in 1957 and death in 1982, and the Defendant never knew its location or boundaries until 2014, admitting other squatters occupied sections of the land.
Legal principles established
#- A party claiming adverse possession must prove possession that is peaceful, open and continuous - nec vi, nec clam, nec precario
- A registered owner who neglects to assert his rights for the statutory period cannot disturb a lengthened possession
Court orders
#- 1.The orders sought in the Amended Originating Summons dated 30th January 2019 are allowed as prayed
- 2.The Plaintiffs are entitled to the four acres portion of Plot No. 272 CR No. 6290 Kipini by adverse possession
- 3.The Defendant's Counterclaim is dismissed
- 4.Each party shall bear their own costs
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act, Cap 22 - application to the High Court (now Environment and Land Court) for an order that a person entitled by adverse possession be registered as proprietor
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catholic Diocese of Malindi Registered Trustees o/a Kipini Roman Catholic Church v Mohamed Bin Ali Dhiyebi; Ali Mohamed Ali (Interested Party) [2021] KEELC 4659 (KLR)", Case Analysis (2021). Originating Summons dated 7th November 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4659/eng@2021-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.