Kibwana Hamadi & 149 Others v Society Ltd & 5 Others
The bottom line
#The Environment and Land Court in Malindi dismissed 150 squatters' land claim, upheld the landowners' titles, and validated eviction against them.
What this practically means
#Executive summary
#Key legal issues
#Competency of adverse possession claim brought by plaint
The suit is not fatally defective; adverse possession can be raised by plaint
Order 37 Rule 7 requires originating summons only where a party applies to be registered as proprietor by adverse possession. The Court of Appeal in Chevron (K) Ltd v Harrison Charo Wa Shutu held a claim by adverse possession can be brought by plaint, overruling the earlier restrictive view in Njuguna Ndatho. Since the plaintiffs sought to impeach titles, the plaint procedure sufficed.
Validity of the 2nd defendant's title acquired through his father's purchases and transmission
The father legally acquired the land and the 2nd defendant obtained title procedurally through transmission
The sale agreements and transfers from original shareholders of Plot 284 were exhibited. The plaintiffs were never privy to the purchases and PW1 and PW2 acknowledged them. Letters of administration confirmed proper transmission upon the father's death in 1999; the siblings never complained. The acreage depicted was 68.62 hectares.
Validity of the 1st defendant's purchase of Title CR 37354
The 1st defendant lawfully purchased the land for valuable consideration from a proprietor with good title
A sale agreement dated 15th December 2015 and transfer were produced; due diligence including a land office search was done and the land was vacant when purchased. The root of title traced to the 2nd defendant was sound. The plaintiffs adduced no evidence impugning the sale, subdivisions or transfers.
Whether the plaintiffs proved adverse possession of 99.94 acres
No; the claim failed for want of proof of possession
The plaintiffs' evidence did not establish uninterrupted, open and adverse possession with animus possidendi. Their occupation was characterised as an invasion and incursion without colour of right, occurring around 2016-2018 and after status quo orders in Malindi ELC No 44 of 2020. No evidence identified the specific portions occupied by the 149 plaintiffs.
Validity of the eviction notices
The notices were legal and regular given the 1st defendant's proprietary protection
Having found the 1st defendant a lawful purchaser, its right to proprietary protection under Article 40 of the Constitution and Sections 25, 26 and 27 of the Land Registration Act follows, and the eviction notices issued stand as legal and regular.
Legal principles established
#- A claim for adverse possession may properly be brought by way of plaint and need not be by Originating Summons under Order 37 Rule 7
- Adverse possession must be established as a fact with clear intention to hold adversely and under a claim of right; it cannot be assumed from mere exclusive possession
- Title to land may be acquired through transmission and transfer under Section 7 of the Land Act
Court orders
#- 1.The plaintiffs' suit against the defendants is dismissed with costs
- 2.A declaration that the 1st Defendant is the lawful owner of all that parcel of land known as No CR 35955/3 LR No 4379/111/MN by way of transfer out of purchase and is entitled to vacant possession
- 3.A permanent injunction restraining the plaintiffs, their servants or those claiming under them from trespassing, entering or remaining on land parcel No CR 35955/3 LR No 4379/111/MN
- 4.The notice of eviction issued by the 1st defendant is declared legal, valid and proper and the 1st defendant is at liberty to enforce the same in accordance with the law
- 5.A declaration that the 2nd defendant's father William Kiptoo Barkoria acquired 68.62 hectares of L.R no 284/III/MN for valuable consideration and the 2nd defendant was properly registered as the owner of L.R 563/III/MN and the consequent subdivisions thereof and transfer of portions thereof passed the property and are protected by law
- 6.A permanent injunction restraining the plaintiffs, their agents, assigns or anybody else from encroaching, entering into any portion of land being a resultant subdivision of L.R 563/III/MN
- 7.An order of eviction against the plaintiffs, their assignees and beneficiaries of any portion of land being a resultant sub-division of L.R 563/III/MN, to be effected in accordance with the law
- 8.Costs of the suit and the counterclaim awarded to the 1st and 2nd defendants/counter-claimants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibwana Hamadi & 149 Others v Society Ltd & 5 Others", Case Analysis (2023). Environment & Land Case E005 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17218/eng@2023-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.