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ELCAllowedNot stated in the extract· [2022] KEELC 3465 (KLR)

Ndonyi v Mohamed & another (Administrators of the Estate of the Late Mohammed Bin Saburi Bajuni) (Environment & Land Case 114 of 2008) [2022] KEELC 3465 (KLR)

Environment and Land Court of Kenya
27 July 2022
NMN. A. Matheka
305 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Mombasa corrected the size of land won through adverse possession, granting the occupier the full 41ft by 100ft plot plus a vesting order.

What this practically means

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Executive summary

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The applicant, who had previously obtained judgment by adverse possession over Plot Number MN/II/196 from Justice Mukunya, brought a Notice of Motion dated 23rd August 2021 under Order 51 Rule 1 & 2 of the Civil Procedure Rules. He sought rectification of the size of the land granted to him to 41ft by 100ft instead of the indicated 293ft by 7ft, which he contended was an error, together with a vesting order vesting the land in him and costs. He relied on the assertion that the original order of adverse possession was based on a building on the land, which a private surveyor's report (attached) established occupied 41ft by 100ft, and that the earlier judgment had directed that a proper survey be done before title issued. The application was served but the respondent filed no response. Matheka J perused the court record, confirmed the earlier judgment in the applicant's favour and the stated dimensions, found the unchallenged application merited, and granted it as prayed, directing rectification of the plot size and issuance of a vesting order, with costs provided for. Judgment was delivered, dated and signed at Mombasa on 27th July 2022. The extract does not disclose the case number or any authorities cited.

Key legal issues

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01

Rectification of the dimensions of land awarded by adverse possession

Holding

The court granted rectification of the plot size from 293ft by 7ft to 41ft by 100ft and issued a vesting order, the application being unopposed and supported by a survey report.

Reasoning

The court noted the application was served but no response was filed. It perused the court record and confirmed that Justice Mukunya had entered judgment for the applicant by adverse possession over the plot, with the size indicated as 293ft by 7ft. A survey report by a private surveyor was attached showing the building on which the adverse possession claim rested occupied 41ft by 100ft. In the absence of any challenge, the court found the application merited and granted it as prayed.

p. 2

Legal principles established

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  • An unchallenged application, supported by evidence on affidavit, may be granted as prayed where the record bears out the claim of error.

Court orders

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  1. 1.The size of the land granted to the plaintiff by adverse possession on Plot Number MN/II/196 is rectified to 41ft by 100ft and not 293ft by 7ft
  2. 2.A vesting order is issued vesting the land to the plaintiff
  3. 3.Costs of the suit are provided for (granted as prayed)

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1 & 2
Jurisdiction invoked
Order 51 Rule 1 & 2 of the Civil Procedure Rules

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, "Ndonyi v Mohamed & another (Administrators of the Estate of the Late Mohammed Bin Saburi Bajuni) (Environment & Land Case 114 of 2008) [2022] KEELC 3465 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3465/eng@2022-07-27

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