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ELCDismissedMalindi Civil Suit No. 2 of 2021 (O.S)· [2023] KEELC 305 (KLR)

Kitsao & another v Githinji (Civil Suit 2 of 2021) [2023] KEELC 305 (KLR)

Environment and Land Court
26 January 2023
MOM.A. Odeny
2,157 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an adverse possession claim because the claimants only stated they occupied land since 2007 without proving it.

What this practically means

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Executive summary

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By an Originating Summons dated 29th November 2021, Kitsao Kenga Kitsao and Alex Kenga Kitsao sought declarations that the title of Peris Wangui Githinji to Title Number Malindi/Kakuyuni/Madunguni/223 (approximately 5.4 hectares) had been extinguished by their adverse possession for over twelve years since 2007, an order directing the Chief Land Registration Officer, Kilifi to register them as proprietors, and costs. The Respondent was served by substituted advertisement but did not enter appearance, and the summons proceeded undefended. Counsel for the Applicants identified five issues, including registration, entry and possession, whether occupation was permissive, and continuity of possession. The court framed the core question as whether the title holder had been dispossessed or discontinued possession for the statutory period, importing the requirements of animus possidendi and factum possidendi. Applying Haro Yonda Juaie, Mombasa Teachers, Gabriel Mbui, Mbira v Gachuhi, Kweyu v Omuto and other authorities, the court held that the adverse character of possession must be established as a fact and cannot be assumed from mere averments. The Applicants gave no evidence of how they entered the land, no particulars of structures, cultivation or extent of occupation, and no photographic proof. Although their evidence was uncontroverted, uncontroverted evidence must still satisfy the balance of probability. The court found they failed to prove that the registered owner relinquished or abandoned possession or had knowledge of their occupation. The suit was dismissed with no orders as to costs, the suit having been undefended.

Key legal issues

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01

Essentials of adverse possession

Holding

A claimant must prove non-permissive, actual, open, notorious, exclusive and adverse occupation for an uninterrupted 12 years (nec vi nec clam nec precario), and must show animus possidendi and dispossession or discontinuance of possession by the true owner

Reasoning

The court adopted Court of Authority guidance that the claimant bears the burden of demonstrating that the title holder lost the right by dispossession or discontinuance of possession for the statutory period. Possession is a question of fact, and the claimant must show the mode of repudiation and the owner's knowledge of the adverse claim.

p. 3
02

Whether the Applicants proved adverse possession

Holding

They did not; they only averred occupation since 2007 without evidence of how they came into possession, structures, cultivation or other acts inconsistent with the owner's enjoyment

Reasoning

The Applicants gave no evidence of the circumstances of entry - whether as squatters, employees or purchasers - and annexed no photographs or particulars of use. Mere averments of occupation do not establish animus possidendi or that the registered owner was dispossessed or discontinued possession.

p. 3

Legal principles established

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  • Even uncontroverted evidence must be interrogated; a plaintiff must prove its case on a balance of probability whether or not the evidence is challenged
  • The adverse character of possession must be established as a fact and cannot be assumed from mere exclusive possession; de facto use and occupation must be shown

Court orders

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  1. 1.The Originating Summons is dismissed
  2. 2.No orders as to costs as the suit was undefended

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22Sections 17 and 38
  • Limitation of Actions Act, Cap 22Orders 7, 9, 13, 37 and 39 (as cited by counsel)
  • Civil Procedure RulesOrder 21 [1]

Cases cited (14)

  • Said Karama Salim v Kokas M. Nakolo
    [2017] eKLR
  • Katana & 29 others v Nathoo (Environment & Land Case 208 of 2017)
    [2022] KEELC 2232 (KLR)
  • Ann Itumbi Kiseli v James Muriuki Muriithi
    [2013] eKLR
  • Doughlas Mwangi Muteru v Victoria Mere Dzilla
    [2017] eKLR
  • Benjamin Kipsigei Arap Chumek V Reuben Cheruyiot Chepkwony
    (2016) eKLR
  • Haro Yonda Juaie v Sadaka Dzengo Mbauro & another
    [2014] eKLR
  • Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others
    [2018] eKLR
  • Jandu vs. Kirplal & Another
    (1975) EA 225
  • Wambugu vs. Njuguna
    [1983] KLR 173
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Mbira v Gachuhi
    [2002] 1 EA 137
  • Ernest Wesonga Kweyu versus Kweyu Omuto
    CA Civ Appeal No. 8 of 1990
  • Kenya Power & Lighting Company Limited V Nathan Karanja Gachoka & Another
    [2016] eKLR
  • David Odhiambo Ooko v Helida Akoth Oduor & another
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction under Sections 17 and 38 of the Limitation of Actions Act, Cap 22 (adverse possession claim by Originating Summons)

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, "Kitsao & another v Githinji (Civil Suit 2 of 2021) [2023] KEELC 305 (KLR)", Case Analysis (2023). Malindi Civil Suit No. 2 of 2021 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/305/eng@2023-01-26

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