Kanze Safari Ndungo & 3 others v Abdul Nassir Salim Naaman & 2 others [2022] KEELC 2124 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs acquired title to Plot Subdivision No. 4098 by adverse possession
The claim failed; the plaintiffs did not prove exclusive, continuous and uninterrupted possession for over 12 years.
The court applied the Wambugu v Njuguna principles requiring proof of dispossession or discontinuance of the proprietor's possession for 12 years, and the Kimani Ruchire requirement of possession nec vi, nec clam, nec precario. The plaintiffs' evidence was inconsistent: PW2 could not remember when she moved onto the land, PW3 had been away studying, and PW4 admitted she never lived there throughout. Their purchase evidence was disbelieved and the purported sale agreement (PEx5) was rejected.
The weight of the 1st defendant's certificate of title
The 1st defendant's title issued on 18th May 2004 is prima facie and indefeasible and was not impugned on any ground under section 26(1) of the Land Registration Act.
Relying on sections 24(a) and 26(1) of the Land Registration Act and Elijah Makeri Nyangw'ra, the court held that title can only be challenged on fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme. No such ground was established against the 1st defendant's title.
Whether the plaintiffs' evidence of purchase of the land was credible
The court rejected the purported sale agreement and disbelieved the plaintiffs' evidence of purchase.
No genuine documentary evidence of the alleged purchases was produced and no reasons were given why the land was never transferred to the plaintiffs. PEx5, the agreement produced by PW2, was with a third party, Ngoka Hassan, purportedly on behalf of the 1st defendant, and was rejected. The court found the plaintiffs untruthful.
Legal principles established
#- Registration of a person as proprietor of land vests absolute ownership, and a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme.
- To acquire title by adverse possession, the claimant must prove possession as of right — nec vi, nec clam, nec precario — and dispossession or discontinuance of the owner's possession for the statutory period of 12 years.
- Where a claimant pleads an agreement and alternatively adverse possession, possession becomes adverse after payment of the last instalment of the purchase price, and title accrues after 12 years' occupation from that point.
Court orders
#- 1.The plaintiffs' suit is dismissed with costs.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land claims (claim for ownership by adverse possession of land in Mombasa).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanze Safari Ndungo & 3 others v Abdul Nassir Salim Naaman & 2 others [2022] KEELC 2124 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2124/eng@2022-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.