Salim & another v Maganga & 2 others (Environment & Land Case 79 of 2017) [2022] KEELC 2930 (KLR)
The bottom line
#Kenyan landowners lost titled plots in Mariakani because squatters who openly occupied the land for over 12 years acquired ownership through adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs' registered title was defeated by the Defendants' adverse possession
The Plaintiffs' title was defeated; the Defendants had occupied the suit land openly and continuously since 1974 and the 1980s, exceeding the statutory twelve-year period under the Limitation of Actions Act
The court set out the Wambugu v Njuguna principles on dispossession and discontinuance of possession and the nec vi, nec clam, nec precario standard. The Defendants' witnesses confirmed occupation from 1974 (1st Defendant's parents) and the 1980s, and DW2 testified she moved there in 1987 and has lived peacefully. Although a 1995 suit may have interrupted possession, the Plaintiffs did not pursue it until filing the present suit in 2017, well over twelve years later, so the Defendants' possession ripened into title.
Whether the suit was res judicata or sub judice by virtue of CMCC No. 51 of 1995
The court declined to find res judicata or sub judice because neither party advised it of the outcome of the 1995 suit and some of the Defendants were different
It was not disputed that a similar matter, CMCC No. 51 of 1995, was filed in the lower court and dismissed in the Defendants' favour as the Defendants alleged. However, the court held that it had not been advised what became of that suit by either party, and could not therefore conclude that the present matter was res judicata or sub judice. It further noted that some of the Defendants were different, and proceeded to determine the case on its merits.
Burden of proof on the Plaintiffs' claim of ownership
The Plaintiffs, despite producing title documents PEx 7 and 8, failed to prove their case on a balance of probabilities
While the Land Registration Act vests absolute ownership in a registered proprietor and renders the certificate of title prima facie evidence of indefeasible ownership, that title was subject to the Defendants' claim of adverse possession. The Plaintiffs admitted the Defendants were already on the land when they could not take possession, and PW2 confirmed the 1st Defendant had built a house there in 1974. Their failure to assert their rights for decades allowed the Defendants' occupation to mature into title under the Limitation of Actions Act.
Legal principles established
#- Registration of a person as proprietor of land vests absolute ownership in that person
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme
- To acquire title by adverse possession against land with a known owner, the owner must have been dispossessed or must have discontinued possession for the statutory period of twelve years
- Possession claimed as of right must be nec vi, nec clam, nec precario - no force, no secrecy, no persuasion
- An interruption of possession does not defeat adverse possession where the title holder does not pursue the matter for over twelve years
Court orders
#- 1.A declaration that the Defendants are entitled to portions of the suit properties known as Plot Land Reference Number 11492/268 and Plot Reference Number 11492/269 which they occupy by virtue of adverse possession
- 2.Costs of the suit to be paid by the Plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to ownership, occupation and title to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim & another v Maganga & 2 others (Environment & Land Case 79 of 2017) [2022] KEELC 2930 (KLR)", Case Analysis (2022). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2930/eng@2022-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.