Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Court Appeal (Kwale) - appeal against judgment in CMCC No. 324 of 2006· [2023] KEELC 884 (KLR)

Josphat & 3 others v Masudi (Environment and Land Appeal E003 of 2021) [2023] KEELC 884 (KLR)

Environment and Land Court of Kenya
20 February 2023
ADA E Dena
4,170 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Kwale confirmed that a Diani landowner who stayed on disputed plots for over 12 years now owns them.

What this practically means

#

Executive summary

#
This was a first appeal to the Environment and Land Court at Kwale against the judgment of P N Wambugu, Principal Magistrate, delivered on November 26, 2021 in CMCC No. 324 of 2006, which declared the defendant the owner of Kwale/Diani/529-533 by adverse possession. The plaintiffs, children of Ereri M'chabare who held the original plot Kwale/Diani/295, sued for a declaration of ownership, vacant possession and damages for trespass. The defendant pleaded over 29 years of occupation and invoked the Limitation of Actions Act. On appeal the appellants argued that adverse possession was not pleaded, that the 12-year period was interrupted by the 1993 vacation agreement and the plaintiffs' fencing, and that no evidence of possession was produced. Dena J, conducting a first appellate re-evaluation of the evidence, held that the plea of adverse possession was sufficiently raised in paragraphs 5 and 7 of the amended defence, relying on the Court of Appeal's decision in Chevron (K) Ltd v Harrison Charo Wa Shutu that such a claim may be brought by way of defence in an eviction suit. On the merits, the court found no title existed before 1993, that the agreed permission to stay until July 30, 1993 interrupted time, and that from that date the defendant remained in open occupation until suit was filed on August 24, 2006 - over 13 years. PW1's admission that the defendant was on the land from 1990 to 2006 proved possession. The appeal was dismissed, the trial court's judgment affirmed, the land registrar ordered to transfer the suit properties to the defendant, with costs to the respondent.

Key legal issues

#
01

Whether adverse possession was pleaded

Holding

The plea was sufficiently pleaded in paragraphs 5 and 7 of the amended defence, though no counterclaim was included

Reasoning

The amended defence expressly pleaded over 29 years' occupation, time-bar under the Limitation of Actions Act and acquisition of adverse possession. Following Chevron (K) Ltd v Harrison Charo Wa Shutu, a claim by adverse possession may be brought by defence in an eviction suit; only a claim for registration requires originating summons. Grounds 1-3 therefore failed.

p. 6
02

When time for adverse possession began to run

Holding

Time could only run from registration of title (1993/1994) and ran afresh from July 30, 1993 when the defendant's agreed permission to stay lapsed

Reasoning

The original title Kwale/Diani/295 was registered on February 26, 1993, so no adverse possession could run before then. The April 1993 agreement permitted the defendant to stay until July 30, 1993, interrupting possession; thereafter she remained in open occupation until suit was filed on August 24, 2006, exceeding the 12-year statutory period.

p. 7
03

Whether possession was proved

Holding

Possession was proved by the plaintiff's own admission under oath that the defendant remained on the land from 1990 to 2006

Reasoning

PW1 admitted in cross-examination that the defendant was still on the land between 1990 and 2006 and that suit was filed in 2006. The alleged fencing of 1988 was not proved by evidence and submissions could not substitute for evidence. Actual possession with requisite animus was therefore established.

p. 8
04

Whether the plaintiffs' title was impeached

Holding

The defendant's evidence of irregular allocation was insufficient to impeach title, as fraud or illegality was not pleaded; only the adverse possession plea stood

Reasoning

An accountability list showed plot 295 recorded in Hassan Mwalichengo's name, and a newspaper cutting referenced an NLC probe, but no audit report was availed and no corroborating witness called. The amended defence raised neither misrepresentation nor particulars of fraud, so only the adverse possession defence could stand.

p. 5

Legal principles established

#
  • A claim of adverse possession may be raised by way of defence in an action for eviction and need not be brought by counterclaim or originating summons unless registration as proprietor is sought
  • Once time begins to run for purposes of limitation it continues unless the true owner brings an action to recover the land or interrupts the possession
  • There can be no adverse possession against land without a registered title, since time ordinarily runs from registration
  • Submissions cannot take the place of evidence

Court orders

#
  1. 1.Appeal dismissed; the defendant is entitled to the suit properties Kwale/Diani/529, 530, 531, 532 and 533 by way of adverse possession
  2. 2.The land registrar, Kwale shall register the suit properties in the name of the defendant and, in default, the deputy registrar of the Environment and Land Court, Kwale is ordered to execute all appropriate documents necessary to effect the transfer
  3. 3.Costs to the respondent/defendant

Authorities

#

Legislation

  • Evidence Actsections 107 and 108
  • Limitation of Actions Act (Cap 22, Laws of Kenya)sections 7, 13(1), 17, 37 and 38(1)
  • Land Registration Actsection 26(1)(a) and (b)

Cases cited (11)

  • Independent Electoral and Boundaries Commission v Stephen Mutinda Mule & 3 Others
    (2014) eKLR
  • Kasuve v Mwaani Investments Ltd & Others
    2004 1 KLR 184
  • Githu v Ndete
    (1984) KLR 776
  • Selle v Associated Motor Boat Co
    EA 123
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
  • Wambugu v Njuguna
    (1983) KLR 172
  • Benson Mukuwa Wachira v Assumption Sisters of Nairobi Registered Trustees
    [2016] eKLR
  • Mariba v Mariba
    Civil Appeal no 188 of 2002
  • Wabala v Okumu
    (1997) LLR 609 (CAK)
  • Gulam Mariam Noordin v Julius Charo Karisa
    Civil Appeal no 26 of 2015
  • Bayete Co Ltd v Kosgey
    [1998] LLR 813
On appeal from
Principal Magistrate's Court, Kwale
CMCC No. 324 of 2006
Jurisdiction invoked
First appeal from the subordinate court (statutory first appellate jurisdiction of the Environment and Land Court; jurisdiction not in dispute per judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Josphat & 3 others v Masudi (Environment and Land Appeal E003 of 2021) [2023] KEELC 884 (KLR)", Case Analysis (2023). Environment and Land Court Appeal (Kwale) - appeal against judgment in CMCC No. 324 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/884/eng@2023-02-20

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