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ELCPartially AllowedELC No 665 of 2011 (Consolidated with Nairobi ELC 398 of 2012)· [2023] KEELC 290 (KLR)

Owango & 34 others v Marashi Holdings Limited (Environment & Land Case 665 of 2011 & 398 of 2012 (Consolidated)) [2023] KEELC 290 (KLR)

Environment and Land Court
26 January 2023
OAO. A. Angote
3,694 words in judgment
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The bottom line

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A Kenyan court handed land to families who occupied it openly for over 12 years, because the registered owner failed to provide any evidence in court.

What this practically means

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Executive summary

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This judgment disposes of two consolidated suits over L.R No 9042/130, I.R No 49086: ELC No 665 of 2011, an Originating Summons by the Plaintiffs claiming the property by adverse possession, and ELC 398 of 2012, a Plaint by the registered owner seeking an injunction and eviction of the Plaintiffs. The suits were consolidated in 2014 with ELC 665 of 2011 as the lead file. Both matters proceeded by affidavit evidence; the Defendant filed no affidavit and no submissions. The court framed a single issue: whether the Plaintiffs acquired the suit property by adverse possession. Applying Sections 107, 109 and 112 of the Evidence Act, the judge held that pleadings unsupported by evidence are mere averments, so the Defendant's suit failed on a balance of probabilities. On the adverse possession claim, the court accepted the uncontroverted sworn evidence that the Plaintiffs occupied the land from 1989. The Defendant was registered as owner on 1 July 1988, so its right of action expired by limitation in 2001. The possession was found to be peaceful, open, continuous and with animus possidendi, evidenced by extensive developments, satisfying the nec vi, nec clam, nec precario standard. The Defendant's title was declared extinguished. The court dismissed ELC 398 of 2012 with no order as to costs, allowed the Originating Summons, declared the Plaintiffs entitled to be registered as owners, vested the property in them, and issued a permanent injunction against the Defendant, with each party bearing its own costs.

Key legal issues

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01

Whether the Plaintiffs acquired L.R No 9042/130 by adverse possession

Holding

Yes. The Plaintiffs entered in 1989, were registered owner's title extinguished in 2001, and their open, peaceful and continuous possession for over 20 years entitled them to be registered as owners.

Reasoning

The Defendant, registered owner since 1 July 1988, filed no affidavit or reply to controvert the Plaintiffs' sworn evidence of occupation from 1989. Pleadings without evidence are insufficient. The Plaintiffs' possession was open (evidenced by photographs of extensive developments), peaceful, continuous and without the owner's licence, satisfying nec vi, nec clam, nec precario. Twelve years expired by 2001, extinguishing the Defendant's title under Sections 7, 13 and 17 of the Limitation of Actions Act, entitling the Plaintiffs to registration under Section 38.

p. 8
02

Whether the Defendant in ELC 398 of 2012 proved its claim for injunction and eviction

Holding

No. The Defendant filed no affidavit evidence and its suit fails on a balance of probabilities.

Reasoning

The parties agreed to dispose of both matters by affidavit evidence. While the Plaintiffs in ELC 665 of 2011 filed affidavits, the Defendant filed none to support its own claim or rebut the adverse possession claim. Relying on CMC Aviation and Trust Bank authorities, the court held that pleadings unsupported by evidence remain mere statements of fact and cannot sustain a claim.

p. 5

Legal principles established

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  • Pleadings do not constitute evidence; a party who fails to adduce evidence in support of its case cannot found a decision on its pleadings.
  • The title of a registered proprietor is extinguished in favour of an adverse possessor at the expiry of 12 years of adverse possession.

Court orders

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  1. 1.The Plaintiff's suit in ELC 398 of 2012 is dismissed with no order as to costs
  2. 2.The Originating Summons dated 17th November 2011 in ELC No 665 of 2011 is allowed
  3. 3.A declaration that the Plaintiffs are entitled to be registered forthwith as owners of L.R No 9042/130 having acquired the same by adverse possession
  4. 4.An order vesting L.R No 9042/130 in the Plaintiffs
  5. 5.A permanent injunction restraining the Defendant, its employees, servants, agents or any person claiming through them from evicting the Plaintiffs, fencing, interfering with possession or dealing with the suit land
  6. 6.Each party shall bear his/its own costs

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17, 18, 37, 38
  • Civil Procedure RulesOrder 37 Rule 7; Orders 37 and 38
  • Evidence ActSections 3, 107, 109, 112
  • Companies Act

Cases cited (10)

  • Mumbi M'Nabea vs David M. Wachira
    [2016] eKLR
  • Maria Ciabaitaru M'mairanyi & Others v Blue Shield Insurance Company Limited
    Civil Appeal No. 101 of 2000 [2005] 1 EA 280
  • CMC Aviation Ltd vs Cruise Air Ltd (1)
    [1978] KLR 103
  • Charterhouse Bank Limited (Under Statutory Management) vs Frank N. Kamau
    [2016] eKLR
  • Trust Bank Ltd vs Paramount Universal Bank Ltd & 2 Others
    Nairobi HCC 1243/2001
  • Richard Wefwafwa Songoi vs Ben Munyifwa Songoi
    [2020] eKLR
  • Mtana Lewa vs Kahindi Ngala Mwangandi
    (2015) eKLR
  • Wines & Spirits Kenya Limited & another vs George Mwachiru Mwango
    [2018] eKLR
  • Solomon Muathe Mitau & 787 others vs Nguni Group Ranch
    [2017] eKLR
  • Kweyu vs Omuto
    Civil Appeal No. 8 of 1990
Jurisdiction invoked
Orders 37 and 38 of the Civil Procedure Rules and Order 37 Rule 7; Sections 7, 13, 17 and 38 of the Limitation of Actions Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Owango & 34 others v Marashi Holdings Limited (Environment & Land Case 665 of 2011 & 398 of 2012 (Consolidated)) [2023] KEELC 290 (KLR)", Case Analysis (2023). ELC No 665 of 2011 (Consolidated with Nairobi ELC 398 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/290/eng@2023-01-26

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