Mwendo & 4 others v Vekaria; Victoria Commercial Bank Limited (Interested Party) (Environment & Land Case 459 of 2018) [2024] KEELC 3392 (KLR)
The bottom line
#A Nairobi court dismissed over 90 families' claim to own land through adverse possession and ordered them to vacate within 120 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the Originating Summons was fatally defective for want of a supporting affidavit
Not defective - a single affidavit sworn in support of both the contemporaneous Notice of Motion and the Originating Summons satisfied Order 37 Rule 7(2)
Order 37 Rule 7(2) mandates an affidavit in support, a mandatory requirement. However, the Summons was filed with a Notice of Motion supported by an affidavit expressly stating it was sworn in support of both pleadings. Common practice permits one affidavit where the same facts serve both interlocutory and substantive reliefs, so the objection failed.
Whether the Plaintiffs proved adverse possession of the suit properties
No - the Plaintiffs failed to prove 12 years of open, continuous, undisturbed possession; the court found they entered in 2007 during the post-election violence
Oral testimony placing entry in the 1990s was unsupported and conflicting; the Defendant proved on a balance of probabilities that the land was vacant when he purchased in mid-2006. Entry having occurred in 2007, twelve years would elapse only in 2019, after the 2018 suit, so title was not extinguished.
Whether eviction and demolition orders should issue
Yes - the Defendant's registered title was affirmed and the Plaintiffs, admittedly in occupation with constructed structures, were ordered to vacate within 120 days
The Defendant is the absolute and indefeasible registered proprietor under Sections 23, 24 and 26 of the registration statutes; no challenge under Section 26 was substantiated. A proprietor is entitled to peaceful and quiet possession, and occupation being admitted, eviction and demolition prayers were merited.
Legal principles established
#- An action to recover land may not be brought after twelve years from when the right of action accrued, and the title of a proprietor is extinguished at the expiration of that period in favour of a party in adverse possession for a minimum of 12 years
- In a claim for adverse possession the burden of proof is on the person setting up the claim, on a balance of probability
- A claim may properly be raised in a Replying Affidavit under Order 37, in the nature of a defence and counterclaim
- A registered proprietor's title is absolute and indefeasible and may be challenged only on the grounds in Section 26(1) of the Land Registration Act
Court orders
#- 1.The Plaintiffs' Originating Summons dated the 23rd October, 2018 be and is hereby dismissed.
- 2.The Plaintiffs are given 120 days (4 months) from the date of this Judgement to vacate from the suit properties and demolish the structures thereon.
- 3.If the Plaintiffs do not vacate the suit property within 120 days, the Defendant, with the assistance of the police, to evict the Plaintiffs.
- 4.Each party to bear his/ its own costs.
- Jurisdiction invoked
- Sections 37 and 38 of the Limitation of Actions Act, Cap 22; Order 37 Rule 7 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwendo & 4 others v Vekaria; Victoria Commercial Bank Limited (Interested Party) (Environment & Land Case 459 of 2018) [2024] KEELC 3392 (KLR)", Case Analysis (2024). Originating Summons dated 23rd October, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3392/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.