Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedOriginating Summons dated 1st February 2018· [2022] KEELC 1722 (KLR)

Ali Mwadhi Mulewa & 40 others v Giuseppe Galgalo [2022] KEELC 1722 (KLR)

Environment and Land Court
4 February 2022
MOM.A. Odeny
1,225 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Malindi court confirmed that families occupying land openly for over 12 years without the owner's interference can claim ownership through adverse possession.

What this practically means

#

Executive summary

#
By an Originating Summons dated 1st February 2018, the Applicants sought declarations that they had acquired land reference number 413 Malindi by adverse possession and were entitled to be registered as proprietors in place of the Respondent. The Respondent, served by substituted service, filed no response and the matter proceeded ex parte before the Environment and Land Court at Malindi. The Applicants' lead witness testified that most of them were born and raised on the suit property, which they cultivated and grazed upon, constructing permanent structures and burying their loved ones there for over 20 years without interference from the Respondent, who was never in occupation. They produced an official search and extract of the parcel file confirming the Respondent's registration, together with photographs and a surveyor's report identifying the distinct portions each Applicant occupies and confirming those portions can be separately registered. The court framed a single issue: whether the Applicants proved acquisition by adverse possession. Relying on the settled ingredients of the doctrine, including the requirement of dispossession or discontinuance of the title holder's possession for over 12 years, and the need to exhibit proof that the person sued is the registered owner, the court found the claim proved. It declared the Applicants proprietors of the suit land by adverse possession, entitled to be registered as owners of their respective portions and issued with title documents, and ordered each party to bear their own costs.

Key legal issues

#
01

Whether the Applicants acquired L.R. No. 413 Malindi by adverse possession

Holding

Yes - the Applicants proved over 12 years of peaceful, uninterrupted occupation to the exclusion of the Respondent, who was never in occupation

Reasoning

The Applicants testified they were born and raised on the land, cultivated, grazed, constructed permanent structures and buried their loved ones there for over 20 years without interference. They produced an official search and extract of title confirming the Respondent's registration, and a surveyor's report delineating their distinct portions. The Respondent, served by substituted service, filed no response and the matter proceeded ex parte. The court found the elements of adverse possession established.

p. 2

Legal principles established

#
  • An adverse possession claimant must prove the title holder has been dispossessed or discontinued possession for over 12 years
  • A claimant must exhibit a copy of title, extract of register or official search proving the person sued is the registered owner

Court orders

#
  1. 1.The Applicants be and are hereby declared as proprietors of the parcel of land reference number 413 Malindi which they have acquired by way of adverse possession
  2. 2.A declaratory order that the Applicants are entitled to be registered as owners of their respective portions and issued with title documents over land reference number 413 Malindi in place of the Respondent
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Section 38(1) and (2) of the Limitation of Actions Act - application to the High Court for an order that a person entitled by adverse possession be registered as proprietor

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Ali Mwadhi Mulewa & 40 others v Giuseppe Galgalo [2022] KEELC 1722 (KLR)", Case Analysis (2022). Originating Summons dated 1st February 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1722/eng@2022-02-04

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