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ELCStruck OutMombasa ELC Originating Summons (not otherwise numbered in judgment)· [2022] KEELC 430 (KLR)

Safari Chengo Nyambu & others v Alpesh Kanaksihn Khimji [2022] KEELC 430 (KLR)

Environment and Land Court
21 April 2022
1,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land adverse possession claim because the titles claimed no longer existed.

What this practically means

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Executive summary

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Five plaintiffs, purporting to represent over three hundred unnamed residents, filed an Originating Summons on 20 January 2021 claiming to have acquired title by adverse possession to land parcels MN/II/271, 276, 277, 278 and 231 in Mombasa, with a contemporaneous application for injunction and registration of a prohibition against the titles. The defendant applied to discharge the interim orders and strike out the suit on the grounds that it disclosed no reasonable cause of action, was sub judice two pending ELC suits between the same parties, and that the suit properties no longer existed, having been consolidated into Plot No. 15870 and subdivided into 278 plots with individual titles issued on 28 February 2020. The court heard both applications together on written submissions. Holding that the evidence of consolidation and subdivision was unchallenged, the court found that adverse possession can only be claimed against a title that exists, since a successful claim would result in registration over that title. The plaintiffs' suit, seeking ownership of titles that no longer exist, was held to be completely misplaced and an abuse of the court process. The court struck out the suit with costs to the defendant, vacated all interim orders, and declined to address the sub judice question or the injunction application, there being no suit remaining.

Key legal issues

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01

Whether a claim for adverse possession can be sustained where the titles claimed have been consolidated and subdivided with new titles issued

Holding

No; the suit must be struck out as an abuse of process because the claimed titles do not exist.

Reasoning

The court found, on unchallenged affidavit evidence, that the five suit parcels were consolidated into Plot No. 15870 and subdivided into 278 plots with new titles issued on 28 February 2020. Since successful adverse possession would result in registration of the plaintiff over the claimed title, that title must exist. Claiming title to a non-existent parcel is completely misplaced and abuses the court process.

p. 2
02

Whether the suit was sub judice the pending Mombasa ELC No. 120 of 2018 and No. 205 of 2018

Holding

Not determined, as the suit was struck out on the first issue.

Reasoning

Having found the suit abusive and doomed to fail for claiming non-existent titles, the court considered it unnecessary to address the sub judice question or the injunction application, since there was no suit left upon which any relief could be anchored.

p. 2

Legal principles established

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  • Adverse possession can only be claimed against a title that exists; one cannot claim adverse possession to a title that does not exist.
  • A suit seeking ownership of a non-existent title is an abuse of the court process and may be struck out.

Court orders

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  1. 1.The Originating Summons/suit is struck out
  2. 2.Costs to the defendant (respondent in the Originating Summons)
  3. 3.Any interim orders issued are vacated
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Originating Summons for 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, "Safari Chengo Nyambu & others v Alpesh Kanaksihn Khimji [2022] KEELC 430 (KLR)", Case Analysis (2022). Mombasa ELC Originating Summons (not otherwise numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/430/eng@2022-04-21

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