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ELCPartially AllowedEnvironment & Land Case 204 of 2017· [2023] KEELC 20605 (KLR)

Nyundo & 2 others v Kindia & 2 others

Environment and Land Court
11 October 2023
MOM.A. Odeny
3,723 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A registered landowner in Kilifi won an injunction and eviction order after the court rejected a 12-year adverse possession claim.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Wilson Baya Nyundo, the registered proprietor of Plot Number Kilifi/Roka/112 (approximately 12 acres at Roka, Kilifi), sued the defendants for permanent injunction and vacant possession, alleging illegal occupation. The defendants, sons and grandson of Kwekwe Kinda (who had been ordered in Kilifi SRMCC No. 56 of 2000 to vacate the land), filed a defence and counterclaim seeking a declaration of adverse possession and registration as proprietors, claiming occupation since 1978. The court framed two issues: entitlement to permanent injunction and proof of adverse possession. It held that the plaintiff's registered title was undisputed and protected under Sections 24, 25 and 26 of the Land Registration Act 2012. On the counterclaim, applying Kasuve v Mwaani Investments and Gabriel Mbui v Mukindia Maranya, the court found the defendants proved none of the ingredients of adverse possession: time ran from registration in 1998, not 1978; the 2000 suit against Kwekwe Kinda interrupted possession; and the occupation was marked by violence and threats when the deceased attempted to clear the land. The defendants also failed to prove possession of the entire parcel. The plaintiff's suit was allowed: a permanent injunction issued, vacant possession was ordered within 45 days failing which eviction would issue, and the counterclaim was dismissed, with costs of both the suit and counterclaim to the plaintiff.

Key legal issues

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01

Whether the Defendants acquired title by adverse possession

Holding

No - the Defendants met none of the ingredients of adverse possession

Reasoning

The Plaintiff became registered owner in 1998, so time ran from 1998, not 1978 as claimed. Filing of the Kilifi case against Kwekwe Kinda in 2000 interrupted any possession. The Defendants' occupation was neither quiet nor uninterrupted, and they used violence when the Plaintiff attempted to clear and fence the plot. They also failed to prove possession of the entire 12.6 acres.

p. 7
02

Whether the Plaintiff is entitled to permanent injunction and vacant possession

Holding

Yes - the Plaintiff proved registered title, which was undisputed, and the Defendants had no justification to remain

Reasoning

The suit land is registered in the name of Wilson Baya Nyundo, and under Sections 24, 25 and 26 of the Land Registration Act 2012 registration vests absolute ownership and the certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation, none of which was pleaded or proved against the Plaintiff.

p. 5

Legal principles established

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  • A claimant in adverse possession must prove exclusive possession openly and as of right without interruption for 12 years
  • The limitation period for adverse possession only starts to run after registration of land in the name of the registered owner
  • Adverse possession must be established as a fact with a clear intention to hold adversely under a claim of right

Court orders

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  1. 1.An order of permanent injunction restraining the 1st, 2nd and 3rd Defendants jointly or severally from trespassing, alienating, interfering, disposing of or in any other way dealing with Plot Number Kilifi/Roka/112 or any part thereof
  2. 2.The Defendants to give vacant possession within 45 days failure to which eviction to issue
  3. 3.Costs of the suit to the Plaintiff
  4. 4.The Defendants' counterclaim is dismissed with costs to the Plaintiff

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 37, 38
  • Land Registrations Act 2012Sections 24, 25, 26, 28
  • Civil Procedure RulesOrder 21 [1]

Cases cited (10)

  • Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat
    (2020) eKLR

    A claimant must adduce cogent evidence of possession of the specific area claimed

  • Kasuve v Mwaani Investments Ltd & others
    (2004) 1 EA

    Ingredients of adverse possession: exclusive, open possession as of right without interruption for 12 years

  • Mohamed Sadeeque Khan v Ali Didi Aboud & 18 others
    Petition No. 7 of 2013

    Adverse possession claim fails where occupation involves violence and threats

  • Manason Ogendo Afwanda v Alice Awiti Orende & Another
    (2020) eKLR

    Limitation period for adverse possession starts running after registration of land in the owner's name

  • Titus Kiguru Munyi v Peter Mburu Kimani

    Cited with approval on when limitation period begins to run

  • Abdilrazak Khalifa Salim v Harun Rashid Khator & 2 others
    (2015) eKLR

    Urged in support of dismissal of the counterclaim

  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    (2014) eKLR

    Plaintiff's duty to prove its case on a balance of probability

  • Kilimo Shutu & 6 others v Godfrey Karume
    (2017) eKLR

    Essential requirements for a claim of adverse possession

  • Peter Kamau Njau v Emmanuel Charo Tinga
    (2016) eKLR

    Circumstances under which a registered owner's title can be defeated by adverse possession

  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR

    Adverse character of possession must be established as a fact with clear intention to hold adversely under claim of right

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Plot Number Kilifi/Roka/112)

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, "Nyundo & 2 others v Kindia & 2 others", Case Analysis (2023). Environment & Land Case 204 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20605/eng@2023-10-11

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