Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedOriginating Summons dated 22nd November 2021· [2024] KEELC 47 (KLR)

Kadenge & another v Mida Creek Dynamic Limited (Environment & Land Case E002 of 2022) [2024] KEELC 47 (KLR)

Environment and Land Court
18 January 2024
MOM.A. Odeny
1,736 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kilifi court dismissed an adverse possession claim because the 12-year legal waiting period had not elapsed since the owner was registered in 2014.

What this practically means

#

Executive summary

#
By an originating summons dated 22nd November 2021, Dzame Kahindi Kadenge and Samini Kahindi Kadenge sought a declaration that the interest of Mida Creek Dynamic Limited in land parcel Kilifi/Mtondia/36 (about twelve acres in Kilifi County) had been extinguished by adverse possession, and orders directing the Land Registrar, Kilifi to delete the defendant's entries and register them as proprietors without gazettement, pursuant to Section 38(2) of the Limitation of Actions Act. In their uncontroverted evidence, the plaintiffs testified that they took possession before independence, had occupied the land for over thirty years, built rental houses, farmed, kept livestock and installed electricity, all without the owner's permission, and had never been asked to leave. Despite service, the defendant neither entered appearance nor participated. The court framed a single issue: whether the plaintiffs proved acquisition of the suit property by adverse possession. Relying on Gabriel Mbui v Mukindia Maranya and Titus Kigoro Munyi v Peter Mburu Kimani, the court held that for registered land the limitation period runs from the date of registration of the owner. The certificate of search showed the defendant was registered as owner on 22nd October 2014; by the time of filing in 2022 only eight years had elapsed. The mandatory twelve-year period having not lapsed, the claim was premature. The Originating Summons was dismissed with no orders as to costs.

Key legal issues

#
01

Whether the plaintiffs acquired Kilifi/Mtondia/36 by adverse possession

Holding

No. The defendant was registered on 22nd October 2014 and only eight years had elapsed by 2022, so the twelve-year period had not run and the claim was premature.

Reasoning

Section 7 of the Limitation of Actions Act bars an action to recover land after twelve years, and section 13 requires possession in whose favour limitation can run. Relying on Gabriel Mbui v Mukindia Maranya and Titus Kigoro Munyi v Peter Mburu Kimani, the court held that for registered land time runs from the granting of the certificate of title/registration of the owner. The defendant was registered in 2014; even accepting possession of over thirty years, the limitation clock against the registered owner had run only eight years when suit was filed.

p. 4

Legal principles established

#
  • The limitation period for adverse possession begins to run from the date the land is registered in the name of the owner against whom the claim is made

Court orders

#
  1. 1.The Plaintiffs' Originating Summons dated 22nd November 2021 is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 9
  • Limitation of Actions ActSection 10
  • Limitation of Actions ActSection 11
  • Limitation of Actions ActSection 12
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 37
  • Limitation of Actions ActSection 38
  • Constitution of KenyaArticle 40(1)
  • Constitution of KenyaArticle 60(1)
  • Civil Procedure RulesOrder 21 [1]

Cases cited (11)

  • Tabitha Waitherero Kimani vs Joshua Ng'ang'a
    [2017] eKLR
  • Kahindi Ngala Mwagandi vs Mtana Lewa
    [2014] eKLR
  • Titus Kigoro Munyi vs Peter Mburu Kimani
    Civil Appeal No. 28 of 2014; [2015] eKLR
  • Bedan Maina Njoroge v Patrick Ngaruiya & another
    [2021] eKLR
  • Z F Stofiberg NO & others v City of Cape Town
    (1325/2017) [2019] ZASCA
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Alibhai v Alibhai
    [1938] 5 E A C A 1
  • Gathure v Beverly
    [1965] E A 514
  • Wandera and another v Attorney-General
    [1976] Kenya L R 275
  • Francis Gitonga Macharia v Muiruri Waithaka
    Civil Appeal No. 110 of 1997
  • Mtana Lewa v Kahindi Ngala Mwangandi
    (2005) eKLR
Jurisdiction invoked
Limitation of Actions Act, Chapter 22 Laws of Kenya (Sections 7, 13 and 38); Articles 40(1) and 60(1) of the Constitution of Kenya invoked by plaintiffs

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kadenge & another v Mida Creek Dynamic Limited (Environment & Land Case E002 of 2022) [2024] KEELC 47 (KLR)", Case Analysis (2024). Originating Summons dated 22nd November 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/47/eng@2024-01-18

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