Wandary & 104 others v Bharmaz & another
The bottom line
#A Kenyan court dismissed 107 people's land claim because they couldn't prove exactly when and how they occupied the property.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs proved adverse possession for over twelve years
The claim failed because the Plaintiffs did not prove when possession commenced, the specific portions each occupied, or uninterrupted exclusive possession
The court accepted the settled ingredients of adverse possession (open and notorious, continuous, exclusive and actual possession) and the factum possessionis/animus possidendi requirement. Although the claim was undefended, the burden remained on the Plaintiffs. They never stated when they took possession, so time could not be computed, and the 107 Plaintiffs did not identify their individual portions or dates of entry. Mere assertion of over twelve years' occupation was insufficient.
Legal principles established
#- An undefended suit does not relieve the claimant of the burden of proving the ingredients of adverse possession
- A claimant in adverse possession must specifically prove the date possession was taken, actual possession, knowledge of the true owner, openness and non-interruption for twelve years
Court orders
#- 1.The suit is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over adverse possession claims relating to land; relief sought under section 38 of the Limitation of Actions Act, Chapter 22, Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wandary & 104 others v Bharmaz & another", Case Analysis (2022). Environment & Land Case 19 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14976/eng@2022-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.