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ELCPartially AllowedOriginating Summons dated 1st July 2019· [2022] KEELC 1961 (KLR)

Adija Chepkasi Mohamed v Manfred Oscar Schlessman & another [2022] KEELC 1961 (KLR)

Environment and Land Court
27 January 2022
JOJ. O. Olola
1,426 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court handed a woman ownership of Malindi land she had lived on since 1988, proving 12-year adverse possession with bills and receipts.

What this practically means

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Executive summary

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By an Originating Summons dated 1st July 2019 under Order 37 Rule 7 of the Civil Procedure Rules and Sections 7, 9, 13, 37 and 38 of the Limitation of Actions Act, Adija Chepkasi Mohamed sought declarations that the title of Manfred Oscar Schlessman and Manuela Schlessman, registered joint tenants of Plot No. 3037 (Original No. 1754/10) Malindi, had been extinguished by her adverse possession for over 12 years, together with an order directing the Registrar of Titles, Mombasa to register her as proprietor, and costs. The Applicant deposed that she had occupied the property since its registration on 29th April 1988, paying land rates, electricity and water bills, and that caveats and a prohibitory order registered in 1997 had never been followed by any assertion of proprietary rights by the Respondents or caveat holders. Despite substituted service on 30th May 2020, the Respondents neither entered appearance nor responded, so the suit proceeded undefended on affidavit evidence and written submissions. Relying on the principles in Said Karam Salim v Kokas M. Nakolo (2017) eKLR, the court held that adverse possession requires actual, open, hostile and continuous possession excluding the true owner for the statutory 12-year period, and that such possession must not be by force, stealth or licence. Finding the Applicant's uncontroverted evidence sufficient, the court allowed prayers 1, 2 and 3 of the Originating Summons, declaring the Respondents' title extinguished and ordering the Applicant's registration as proprietor, while making no order as to costs.

Key legal issues

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01

Whether the Applicant proved adverse possession for over 12 years

Holding

Yes - the Applicant's occupation since 1988 was actual, open, hostile, continuous and uninterrupted, and uncontroverted by the Respondents

Reasoning

The Applicant deponed to occupation since 1988 and produced receipts for land rates paid to the Municipal Council of Malindi and County Government of Kilifi, electricity bills from Kenya Power and water bills from Mawasco. The Respondents, though served, did not enter appearance or respond, leaving the assertions uncontroverted. The court was satisfied the claim was proved to the required standard.

p. 3
02

Whether the Respondents' title was extinguished and the Applicant entitled to registration

Holding

Yes - title extinguished under Sections 17 and 38 of the Limitation of Actions Act; Applicant entitled to be registered

Reasoning

Section 37(1) permits a person entitled by adverse possession to registered land to apply to the Environment and Land Court for an order that they be registered as proprietor in place of the registered owner. Since the statutory period had run and the requirements were met, the court allowed prayers 1, 2 and 3 of the Originating Summons and ordered registration.

p. 2

Legal principles established

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  • Adverse possession requires actual, open, hostile and continuous possession to the exclusion of the true owner for the statutory period of 12 years
  • The possession must not be by force, stealth or under licence and must be adequate in continuity, publicity and extent

Court orders

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  1. 1.Declaration that the Respondents' title to LR No. Plot No. 3037 (Original No. 1754/10) Malindi has been extinguished by the Applicant's adverse possession for more than 12 years under Sections 17 and 38 of the Limitation of Actions Act
  2. 2.Declaration that the Applicant has acquired the freehold interest in the suit property by adverse possession from at least 1988
  3. 3.Order directing the Registrar of Titles, Mombasa to register the Applicant as proprietor of the suit property in place of the Respondents
  4. 4.No order as to costs

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 9, 13, 17, 37, 38
  • Civil Procedure Rules, 2010Order 37 Rule 7

Cases cited (1)

  • Said Karam Salim -vs- Kokas M. Nakolo
    (2017) eKLR
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act, Cap 22 and Order 37 Rule 7 of the Civil Procedure Rules, 2010

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, "Adija Chepkasi Mohamed v Manfred Oscar Schlessman & another [2022] KEELC 1961 (KLR)", Case Analysis (2022). Originating Summons dated 1st July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1961/eng@2022-01-27

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