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ELCDismissedEnvironment & Land Case E005 of 2022· [2023] KEELC 17218 (KLR)

Kibwana Hamadi & 149 Others v Society Ltd & 5 Others

Environment and Land Court
3 May 2023
7,708 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiffs, led by Kibwana Hamadi, sued claiming about 99.4 acres of land in Kilifi County occupied since time immemorial, seeking suspension and cancellation of an eviction notice, cancellation of titles stemming from subdivisions of the original Plot No. 284 Section III Mainland North, declarations of ownership by prescription/adverse possession, sub-division and transfer orders, and a permanent injunction. They pleaded fraud in the acquisition of titles by the 2nd defendant (John Kimogut Kiptoo, whose father William Kiptoo Barkoria purchased shares of Plot 284 from original shareholders) and the 1st defendant (Safaricom Investments Co-operative Society Ltd, which bought 10 acres from the 2nd defendant in 2015/2016). Both defendants filed defences and counterclaims seeking declarations of ownership, vacant possession, eviction and injunctions. The court framed eight issues. It held that an adverse possession claim may competently be brought by plaint, following Chevron (K) Ltd v Harrison Charo Wa Shutu. It found the 2nd defendant's father legally acquired the land and title passed by transmission (68.62 hectares), and that the 1st defendant lawfully purchased Title CR 37354 in a market overt for valuable consideration. The plaintiffs' adverse possession claim failed: their occupation was an invasion without colour of right, no evidence identified the portions occupied by the 149 plaintiffs, and the pleaded fraud was never proved. The suit was dismissed and both counterclaims succeeded. The court declared the defendants' ownership, validated the eviction notice, issued permanent injunctions and an eviction order, and awarded the defendants costs of the suit and counterclaim.

Key legal issues

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01

Competency of adverse possession claim brought by plaint

Holding

The suit is not fatally defective; adverse possession can be raised by plaint

Reasoning

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.

p. 10
02

Validity of the 2nd defendant's title acquired through his father's purchases and transmission

Holding

The father legally acquired the land and the 2nd defendant obtained title procedurally through transmission

Reasoning

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.

p. 11
03

Validity of the 1st defendant's purchase of Title CR 37354

Holding

The 1st defendant lawfully purchased the land for valuable consideration from a proprietor with good title

Reasoning

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.

p. 12
04

Whether the plaintiffs proved adverse possession of 99.94 acres

Holding

No; the claim failed for want of proof of possession

Reasoning

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.

p. 13
05

Validity of the eviction notices

Holding

The notices were legal and regular given the 1st defendant's proprietary protection

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 1.The plaintiffs' suit against the defendants is dismissed with costs
  2. 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. 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. 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. 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. 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. 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. 8.Costs of the suit and the counterclaim awarded to the 1st and 2nd defendants/counter-claimants

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 38
  • Land ActSection 7; Section 152(f)
  • Land Registration ActSections 25, 26, 27
  • Constitution of KenyaArticle 40
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (19)

  • Godfrey Njogu Mungai v Francis Kagiya & 3 Others
    [2021] eKLR

    Definition of ownership based on undivided shares

  • Vijay Morjaria v Nansigh Madhusingh Darbar & Another
    [2000] eKLR
  • Hassan Mohamed Haji v Mohamed Keynan & Another
    [2019] eKLR
  • Alex Waigera Mwaura v Chania Power Company Limited & Another
    [2020] eKLR

    Trespass by persons entering without colour of right

  • Kasuve v Mwaani Investments Ltd & Others
    [2004] KLR 184

    Adverse possession principles - when time runs

  • Titus Kigoro Munyi v Peter Mburu Kimani
    [2015] eKLR

    Adverse possession principles

  • Khalif Mohamed Hure V Mohamed Abdi Karim
  • Sammy Kemoo Arekai v Eliakim M. Olweny & Another
    [2021] eKLR

    Permanent injunction

  • Solomon Muathe Mitau & 787 others v Nguni Group Ranch
    [2017] eKLR

    Distinction between prescription and adverse possession; need for claimants to prove possession

  • Benina Ndungwa Kinyumu & 4 Others vs National Land Commission
    [2015] eKLR

    Distinction between adverse possession and prescription

  • Chevron (k) Ltd V Harrison Charo Wa Shutu
    [2016] eKLR

    Adverse possession claim may be brought by plaint

  • Njuguna Ndatho v Masai Ituma & 2 others
    Civil Appeal No. 231 of 1999

    Earlier view that adverse possession claims required originating summons

  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR

    Adverse character of possession must be established as a fact

  • Wambugu vs Njuguna
    [1983] KLR 172

    Proof of adverse possession - dispossession or discontinuance by title holder

  • Zacharia Okoth Obado vs Edward Akongo Oyugi & 2 Others
    [2014] eKLR

    Rules of procedure are not mere platitudes

  • Mariba -vs- Mariba
    Civil Appeal No.188 of 2002

    Adverse possession claim by plaint

  • Wabala -vs- Okumu
    (1997) LLR 609 (CAK)

    Adverse possession pleaded in defence upheld

  • Gulam Mariam Noordin v Julius Charo Karisa
    Civil Appeal No 26 of 2015

    Defence of limitation may be raised in defence or defence and counterclaim

  • Bayete Co. Ltd –vs- Kosgey
    (1998) LLR 813

    Adverse possession plea granted even without specific plea

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

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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, "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.