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ELCPartially AllowedOriginating Summons dated 2nd April 2019· [2022] KEELC 1171 (KLR)
Julius Peter Migwi Gichimu & 2 others v Saul Chemos Tuka [2022] KEELC 1171 (KLR)
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#What this practically means
#Executive summary
#This was an Originating Summons dated 2nd April 2019 brought under Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules 2010, seeking a declaration that the Applicants had acquired prescriptive title to Nairobi/Block 97/1348 by adverse possession and an order directing the Land Registrar to register them in place of the Respondent, Saul Chemos Tuka. The Respondent was served by substituted service through an advertisement in the Star Newspaper on 20th September 2019, confirmed by an affidavit of service, but did not enter an appearance or file a response. The matter proceeded by viva voce evidence, with the 1st Applicant, Julius Peter Migwi Gichimu, testifying with authority of his Co-Applicants. He testified that they had occupied the land since 1994/1995, put up permanent structures, and enjoyed open, continuous and uninterrupted possession for over 24 years without permission of the registered owner. The court framed two issues: entitlement to registration by adverse possession and costs. Adopting the Mtana Lewa definition and the nec vi nec clam nec precario standard, the court found the Applicants had proved possession exceeding twelve years on a balance of probabilities and that their uncontroverted claim succeeded. Judgment was entered for the Applicants, declaring them entitled to be registered as owners of the suit property, with no orders as to costs.
Key legal issues
#01
Whether the Applicants acquired title by adverse possession
Holding
Yes; the Applicants proved open, continuous, peaceful and uninterrupted possession for more than 12 years, entitling them to be registered as proprietors
Reasoning
The court applied the Mtana Lewa test and the nec vi nec clam nec precario standard from Celina Muthoni Kithinji. The Applicants entered the land in 1994/1995, erected permanent structures evidenced by photographs, and no one attempted to evict them. The claim was uncontroverted as the Respondent, though duly served by substituted service, filed no response. The court found the claim proved on a balance of probabilities.
p. 2
Legal principles established
#- Adverse possession arises where a person takes possession, asserts rights, and the title holder fails to assert title for 12 years
Court orders
#- 1.The Applicants are entitled to be registered as owners of Nairobi/Block 97/1248
- 2.There are no orders as to costs
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Peter Migwi Gichimu & 2 others v Saul Chemos Tuka [2022] KEELC 1171 (KLR)", Case Analysis (2022). Originating Summons dated 2nd April 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1171/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.