Wambua & 6 others (Suing on their own behalf and on behalf of the squatters/residents of Land Registration Numbers 209/9945, 209/9946, 209/9947, 209/9948, 209/9949 and 209/11975 also known as Deep Sea Settlement Scheme) v Sheraton Apartments Ltd & 5 others
The bottom line
#A Nairobi court awarded thousands of Deep Sea squatters ownership of prime land through adverse possession, extinguishing the registered owners' titles.
What this practically means
#Executive summary
#Key legal issues
#Competence of the representative action
The suit was properly constituted as a representative suit under Order 1 Rules 8 and 13 of the Civil Procedure Rules; the alleged defective consent and forged signatures were not proved by evidence.
The Respondents alleged the consent to sue and list of residents bore signatures made by the same hand and lacked identity cards, but led no evidence at trial to prove forgery. Applying the post-2010 constitutional aversion to striking out suits on technicalities, the court found the omission did not go to the root of the case and upheld the representative capacity of the Applicants.
Res judicata
The suit is not res judicata; the defendants in ELC No. 620 of 2005 were different persons and no evidence showed they sued on behalf of the current Applicants.
Section 7 of the Civil Procedure Act requires, conjunctively, same parties or parties litigating under the same title, same issue directly and substantially in issue, heard and finally determined by a competent court. The decree in ELC 620 of 2005 was in personam against different defendants; no evidence established representation of the current Applicants, so the doctrine's essential elements were not satisfied.
Adverse possession
The Applicants proved adverse possession; their possession was open, continuous, exclusive and with animus possidendi, and the Respondents never effectively evicted them or asserted title so as to interrupt the limitation period.
Time could only run against registered titles from the dates of registration (1984-1993). The Respondents' 2005 suit did not stop time because mere filing of suit is not assertion of right by effective entry or eviction. The Applicants built homes openly, had joint single possession, and the Respondents never took actual possession. The claim was proved on a balance of probabilities.
Legal principles established
#- Filing suit asserting rights over land does not by itself stop time running in adverse possession; only effective entry or actual eviction interrupts possession
- Adverse possession cannot lie in respect of government/public land; it can only run against registered private title
- Courts should be hesitant to strike out suits on procedural technicalities in the post-2010 constitutional era
Court orders
#- 1.A permanent injunction restraining the Respondents from interfering with the Applicants' ownership, quiet possession, enjoyment and/or user of Land Registration Numbers 209/9945, 209/9946, 209/9947, 209/9948, 209/9949 and 209/11975
- 2.A declaration that the Applicants have become entitled by way of adverse possession to ownership of all those parcels of land
- 3.A declaration that the titles to the said parcels have been extinguished in favour of the Applicants under sections 37 and 38 of the Limitation of Actions Act
- 4.An order requiring and directing the Registrar of Lands to register the Applicants as Lessees for the residue of the terms of all those parcels of land
- 5.Each party to bear own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to land (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wambua & 6 others (Suing on their own behalf and on behalf of the squatters/residents of Land Registration Numbers 209/9945, 209/9946, 209/9947, 209/9948, 209/9949 and 209/11975 also known as Deep Sea Settlement Scheme) v Sheraton Apartments Ltd & 5 others", Case Analysis (2023). Environmental and Land Originating Summons 385 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17680/eng@2023-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.