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ELCAllowedELC Civil Suit No. 183 of 2009 (OS)· [2024] KEELC 1658 (KLR)

Mwarandu & 2 others (Suing on their behalf and of all the residents of Miritini Majengo Mapya Estate all occupying own portions of Lands/Plots on L.R MN/IV/3640) v Doshi & 2 others (Environment & Land Case 183 of 2009) [2024] KEELC 1658 (KLR)

Environment and Land Court
5 March 2024
12,025 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~48 min to read original · ~4 min brief

The bottom line

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A Mombasa court gave Miritini residents ownership of land they occupied for over 20 years, showing long, open occupation can defeat registered title in Kenya.

What this practically means

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Executive summary

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This is a first-instance judgment of the Environment and Land Court at Mombasa (Naikuni J) on an Originating Summons dated 9th June 2009 filed under section 38 of the Limitation of Actions Act by three plaintiffs suing on their own behalf and on behalf of all residents of Miritini Majengo Mapya Estate on L.R. MN/VI/3640, consolidated with HCCC (Mombasa) No. 262 of 2007 (Mangrove Investment v George Mangale Mwajusi & 141 others). The plaintiffs claimed to have occupied their respective portions openly, exclusively and continuously since 1988, exceeding the statutory 12-year period, and sought registration as proprietors in place of Butler Estates Limited, to which the land had been transferred on 28th May 2008 by Mangrove Investments. The defendants asserted the land was transferred to them, squatters were compensated and removed in 1988, a perimeter wall was erected, and the plaintiffs invaded in or about 2000; they also pleaded material non-disclosure of the earlier suit. After a full trial (including a Deputy Registrar's site visit of 1st April 2015 showing a densely populated estate of old and new houses with no graves, wall or defendant activity on the land), the court framed three issues. It held the plaintiffs met the threshold for title by adverse possession, having been in occupation for 21 years when suit was filed, with nothing stopping limitation from running since the defendants took no plausible step to assert rights; that their possession of the entire land was open, actual, continuous and uninterrupted for more than twelve years; and that costs follow the event. Judgment was entered for the plaintiffs, with an order directing the Land Registrar to register them as proprietors as trustees for the named parties, and costs awarded against the 1st, 2nd and 3rd defendants jointly and severally.

Key legal issues

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01

Whether the plaintiffs met the threshold for title by adverse possession

Holding

Yes. The court found the plaintiffs had been in occupation for 21 years by the time of filing suit, that nothing stopped time from running as defendants took no plausible step to assert rights, and that the threshold was met on a balance of probability.

Reasoning

The court applied sections 7, 13, 17 and 38 of the Limitation of Actions Act and the settled principles requiring open, notorious, continuous and hostile possession (nec vi, nec clam, nec precario) plus animus possidendi. DW-1 admitted squatters were in occupation when the land was acquired, that the last time he visited the property was 2006, and that neither Butler Estates nor Mangrove instituted any civil case or complaint in 2007. The defendants' evidence of compensation and fencing did not interrupt the plaintiffs' possession.

p. 17
02

Whether the plaintiffs are entitled to adverse possession of the entire suit property

Holding

Yes. The court was satisfied the plaintiffs proved possession of the entire land, adverse to the defendants, open, actual, continuous and uninterrupted for more than twelve years.

Reasoning

Relying on Wilson Kazungu Katana, the court required clear identification of the land. The Deputy Registrar's site visit report showed a densely populated area with old and new houses, no evidence of occupation or use by the defendants, no perimeter wall, cultivation or graveyards within the suit premises. The court accepted that efforts to buy the plaintiffs off demonstrated acknowledgement of their occupation and did not break continuity.

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Costs of the originating summons

Holding

Costs awarded to the plaintiffs against the 1st, 2nd and 3rd defendants jointly and severally.

Reasoning

The court exercised its discretion under section 27(1) of the Civil Procedure Act, noting that costs ordinarily follow the event and that the plaintiffs had proved their claim against all three defendants. Morgan Air Cargo was cited for the proposition that the discretion depends on the circumstances of each case.

p. 21

Legal principles established

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  • A claim for adverse possession is attached to land and not title; adverse possession is a fact to be observed upon the land.
  • The adverse character of possession must be established as a fact, with clear intention to hold adversely and under a claim of right, and de facto use and occupation must be shown.
  • Section 7 of the Limitation of Actions Act bars actions to recover land after 12 years, and section 38 permits a person entitled by adverse possession to apply to be registered as proprietor.
  • A claimant must identify the land in possession and prove possession was open, actual, continuous and uninterrupted for the requisite 12 years.
  • Costs follow the event under section 27(1) of the Civil Procedure Act unless the court for good reason orders otherwise.

Court orders

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  1. 1.Judgment entered in favour of the Plaintiffs as against the 1st, 2nd and 3rd Defendants as pleaded in the originating summons dated 9th June, 2009.
  2. 2.An order directing the Land Registrar forthwith to register the Plaintiffs as Proprietors of all the leasehold interest comprised in L.R. No. MN/VI/3640 as Trustees for themselves and for all the parties named in the List annexed to the 'Authority and Consent to Act', in the stead of M/s Butler Estates Limited, by virtue of cumulative adverse possession.
  3. 3.The costs of the suit to be borne by the 1st, 2nd and 3rd Defendants jointly and severally.
Jurisdiction invoked
Section 38 of the Limitation of Actions Act and Order XXXVI Rule 3D of the Civil Procedure Rules, 2010

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, "Mwarandu & 2 others (Suing on their behalf and of all the residents of Miritini Majengo Mapya Estate all occupying own portions of Lands/Plots on L.R MN/IV/3640) v Doshi & 2 others (Environment & Land Case 183 of 2009) [2024] KEELC 1658 (KLR)", Case Analysis (2024). ELC Civil Suit No. 183 of 2009 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1658/eng@2024-03-05

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