Abdalla & 2 others v Mjape & 2 others
The bottom line
#Kenya's Environment and Land Court in Malindi ruled a man who built on disputed land was a trespasser, ordering him to vacate within 45 days and demolish his structures.
What this practically means
#Executive summary
#Key legal issues
#Whether the HCCC No 155 of 1993 judgment was in rem and bound the defendant
The judgment in HCCC 155 of 1993 was a judgment in rem binding the defendant, whose claim derived from his father, a plaintiff in that suit
The defendant was not a party to the 1993 suit but admitted being given the portion he claims by his father Kesi Mjape, a plaintiff in that suit. Applying the Court of Appeal's definition of a judgment in rem, the court found the defendant's claim not independent of the 1993 claim, and no evidence of an appellate order setting aside that judgment was produced.
Whether the plaintiffs' claim was statute barred under section 4(4) of the Limitation of Actions Act
The claim was not statute barred; on the defendant's own testimony the cause of action accrued in 2016 when he commenced construction
Section 4(4) bars actions upon a judgment after twelve years. The defendant argued the 2002 judgment barred the plaintiffs' 2020 suit. The court held that even on the defendant's testimony that construction began in 2016, the cause of action accrued then, well within twelve years of the suit filed in May 2020.
Whether the defendant proved adverse possession of 7 acres
The adverse possession claim failed; the defendant's possession was neither exclusive nor uninterrupted for 12 years
Applying Kasuve v Mwaani Investments, the claimant must prove exclusive, open possession as of right without interruption for 12 years. The court found the defendant's possession was not exclusive or uninterrupted and he had not dispossessed the owner; his own evidence showed his father was still in possession of the 7 acres since 2002. The defendant was therefore a trespasser.
Whether the defendant encroached on the suit property
The defendant was a trespasser; the plaintiffs proved their case and were entitled to injunction, vacant possession and demolition
Having failed on adverse possession and being bound by the in rem judgment, the defendant's entry and construction constituted trespass. The plaintiffs proved their case except mesne profits, which was not specifically proved as special damage.
Legal principles established
#- A claimant in adverse possession must prove exclusive, open possession as of right without interruption for 12 years, either after dispossessing the owner or discontinuation of possession by the owner
- Time under the Limitation of Actions Act stops when the owner asserts his right or when his right is admitted by the adverse possessor
- Mesne profits are special damage which must be specifically pleaded and proved
Court orders
#- 1.A permanent injunction restraining the defendant from remaining on or continuing with construction or occupation of the suit land or dealing with it in any manner whatsoever
- 2.The defendant to give vacant possession of the suit land within 45 days failure to which eviction order to issue
- 3.The defendant to demolish the incomplete structures on the suit land at his own expense
- 4.The counter claim (originating summons for adverse possession) dismissed with costs to the plaintiff and costs of the suit to the plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited in the judgment; suit filed as ELC case and originating summons)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdalla & 2 others v Mjape & 2 others", Case Analysis (2022). Environment & Land Case 34 of 2020 & Environmental and Land Originating Summons 37 of 2020 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13320/eng@2022-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.