Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 19 of 2021· [2022] KEELC 14976 (KLR)

Wandary & 104 others v Bharmaz & another

Environment and Land Court
21 November 2022
1,882 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

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

#
The Plaintiffs, 107 in number, brought an Originating Summons dated September 23, 2021 against the registered owners of a 114.5-acre parcel (Portion No 511, Malindi), seeking extinguishment of the Defendants' title and their own registration as owners by adverse possession, together with reconstruction of the title records and issuance of certificates of title without gazettement under section 38(2) of the Limitation of Actions Act. The Defendants were served by advertisement in the Daily Nation but filed no response, so the suit proceeded undefended. Three Plaintiffs testified, producing a copy of the title, a postal search certificate, photographs of developments, and a letter from the Assistant Chief confirming five residents on the plot. Counsel for the Plaintiffs relied on Kimani Ruchine v Rutherfold and Teresa Wachuka Gachira. The court, applying Tabitha Waitherero Kimani, Masambaga v Malindi Holdings and Maweu v Liu Ranching, held that the ingredients of adverse possession must still be proved even in an undefended suit. The Plaintiffs failed to state when they took possession, so time could not be computed, and the 107 Plaintiffs did not identify the specific portions each occupied or their dates of entry. Their bare assertion of over twelve years' occupation was insufficient. The suit was dismissed with no orders as to costs.

Key legal issues

#
01

Whether the Plaintiffs proved adverse possession for over twelve years

Holding

The claim failed because the Plaintiffs did not prove when possession commenced, the specific portions each occupied, or uninterrupted exclusive possession

Reasoning

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. 1.The suit is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Limitation of Actions Actsection 38(2)
  • Civil Procedure RulesOrder 21 [1]

Cases cited (5)

  • Kimani Ruchine v Rutherfold & Company Ltd
    (1980) KLR

    Plaintiffs must prove continuous, uninterrupted occupation and use inconsistent with the proprietor's enjoyment

  • Teresa Wachuka Gachira v Joseph Mwangi Wachira
    Civil Appeal No 325 of 2003

    Importance of following prescribed procedure; claimant must prove registered ownership of the suit property

  • Tabitha Waitherero Kimani v Joshua Ng'ang'a
    [2017] eKLR

    Ingredients of adverse possession: open and notorious, continuous, exclusive and actual possession

  • Masambaga & 7 others v Malindi Holdings and Estate Limited
    (Civil Appeal 165 of 2019) [2022] KECA 782 (KLR)

    Requirements of fact of possession and continuous possessory intent; factum possessionis and animus possidendi

  • Maweu v Liu Ranching and Farming Cooperative Society
    1985 KLR 430

    Plaintiffs must prove possession is adequate, continuous, open and adverse to the registered owner

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.