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ELCAllowedELC NO. 144 OF 2019 (O.S.)· [2022] KEELC 1885 (KLR)

Mohamed Hassan Bashaed & 46 others v Ras Kisauni Holdings Ltd & another [2022] KEELC 1885 (KLR)

Environment and Land Court
18 January 2022
LNL.L. Naikuni
4,568 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa gave 47 families ownership of Kisauni land they had occupied openly for over 12 years without the owner's permission.

What this practically means

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Executive summary

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The 47 Plaintiffs, residents of Mwandoni in Kisauni, Mombasa, brought an Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act claiming title to parcels MN/I/11723 and MN/I/11726 by adverse possession. They testified that they moved onto the land in 1981 and 1996 with the blessing of the original owner, Mama Saida Hemed Suleiman, paying her monthly rent of Kshs. 200 until 2004, when she subdivided and sold the parcels to the 1st Defendant, Ras Kisauni Holdings Limited, refusing further rent. The Plaintiffs remained in open, continuous and uninterrupted possession, constructing permanent structures, while never paying or being asked to pay rent by the 1st Defendant. The 1st Defendant, though served by substituted means through the Standard Newspaper, never entered appearance or filed a defence; the 2nd Defendant (Land Registrar) filed submissions supporting the legal principles but called no evidence. The court framed three issues: whether the plaintiffs met the adverse possession threshold, whether they were entitled to the orders sought, and costs. Applying Sections 7, 13, 37 and 38 of the Limitation of Actions Act and the Mtana Lewa decision, the court held the uncontroverted evidence proved over 12 years of adverse possession, extinguishing the registered owner's title. Judgment was entered for the Plaintiffs with declarations of title and absolute ownership, an order for rectification of the register, a permanent injunction against eviction, and costs against the 1st Defendant.

Key legal issues

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01

Whether the Plaintiffs established the threshold for title by adverse possession

Holding

Yes. The Plaintiffs proved non-permissive, open, exclusive, continuous and uninterrupted possession from 1981/1996 to date, well beyond the 12-year statutory period, and the 1st Defendant's failure to file a defence amounted to admission.

Reasoning

The court traced the statutory framework in Sections 7, 13, 37 and 38 of the Limitation of Actions Act, noting that title of a registered proprietor is extinguished after 12 years of adverse possession. PW-1 and PW-2 gave uncontroverted evidence of occupation since 1981 and 1996, payment of rent to the original owner until 2004 when she refused further rent having sold the land, and continued possession and development thereafter without interruption or demand. Substituted service was effected on the 1st Defendant, which never entered appearance or filed a defence, so the plaintiffs' evidence stood unchallenged and was treated as admitted.

p. 5
02

Whether the Plaintiffs are entitled to the orders sought in the Further Amended Originating Summons

Holding

Yes. The 1st Defendant, though the registered proprietor since 3rd December 2004, took no action against the Plaintiffs' occupation and development; all prayers were granted.

Reasoning

Official searches produced in court showed the 1st Defendant as the registered absolute proprietor of the two parcels. Despite substituted service by newspaper advertisement, it neither entered appearance nor filed a defence. The court observed that a corporate registered owner, unlike an individual, could not fail to notice storey buildings and renovations on its land, yet took no legal or administrative step for years. The plaintiffs continued in open, undisturbed possession from the 2004 transfer to date, entitling them to all the declarations, rectification and injunction sought.

p. 5
03

Who bears the costs of the suit

Holding

The 1st Defendant, as the unsuccessful party against whom judgment was entered.

Reasoning

Applying Section 27(1) of the Civil Procedure Rules that costs follow the events, and the plaintiffs having succeeded in obtaining judgment, costs were awarded to the plaintiffs against the 1st Defendant.

p. 6

Legal principles established

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  • Adverse possession requires possession as of right, known to the registered owner, continuous and uninterrupted for 12 years or more.
  • Failure to enter appearance or file a defence after proper service renders the plaintiff's uncontroverted evidence admitted, amounting to an admission under Order 13 of the Civil Procedure Rules.

Court orders

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  1. 1.An Order declaring that the Plaintiffs have acquired title of the whole parcels of land known as MN/I/11723 and MN/I/11726 situated in Kisauni within the County of Mombasa by way of Land Adverse possession.
  2. 2.An Order declaring that the Plaintiffs be and are hereby the absolute owners in possession and enjoyment of the whole of the parcels of land known as MN/I/11723 and MN/I/11726 situated in Kisauni, the County of Mombasa.
  3. 3.An Order directing the 2nd Defendant to rectify his/her records by deleting the names of the 1st Defendant and replacing it with the names of the Plaintiffs as the registered proprietors of the whole of the parcels of land known as MN/I/11723 and MN/I/11726 situated in Kisauni the County of Mombasa.
  4. 4.A permanent injunction issued in favour of the Plaintiffs and against the Defendants, their officials or anybody claiming right through or under them restraining them from evicting or in any way interfering with the Plaintiffs peaceful possession and enjoyment of the suit parcels.
  5. 5.An order for costs of the suit to be borne by the 1st Defendant to the Plaintiff.

Authorities

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Legislation

  • Limitation of Actions ActCap 22, Sections 7, 9, 10, 11, 12(3), 13(1),(2),(3), 37, 38(1) & (2)
  • Land Registration Act2012, Section 28(h)
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13(1)
  • Civil Procedure RulesOrder 37 Rules 7, 16, 17, 18, 19; Order 6 and 7; Order 10 Rule 10; Order 13(1) and (2); Section 27(1) on costs

Cases cited (10)

  • Kasuve v Mwaani Investments Limited & 4 Others
    IKLR 184
  • Githu v Ndeete
    (1984) KLR 776
  • Mbira v Gachiki
    EALR 137
  • Jandu v Kiplal & Another
    (1975) E.A. 225
  • Mtana Lewa v Kahindi Ngala Mwangandi
    (2005) eKLR
  • Daniel Kimani Ruchire & Others v Swift Rutherfords & Company Limited & Another
    1977 eKLR
  • Sarah Nyambura Kungu v David Njuguna
    Civil Appeal No. 20 of 1988
  • Francis Gichara Kariri v Peter Njoroge Mairu
    (2005) eKLR
  • Lawrence Muiruri Njuguna v Charles Mweiga Mulwa
    (2018) eKLR
  • Sisto Wambugu v Kamau Njuguna
    (1983) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and Section 13(1) of the Environment and Land Court Act; suit brought under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act Cap 22

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, "Mohamed Hassan Bashaed & 46 others v Ras Kisauni Holdings Ltd & another [2022] KEELC 1885 (KLR)", Case Analysis (2022). ELC NO. 144 OF 2019 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1885/eng@2022-01-18

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