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ELCAllowedEnvironment & Land Case E003 of 2021· [2024] KEELC 4145 (KLR)

Nimambeya v Mazzonetto (Environment & Land Case E003 of 2021) [2024] KEELC 4145 (KLR)

Environment and Land Court
20 March 2024
2,395 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court declared that a woman who farmed Diani land openly for over 40 years is now its registered owner, wiping out the title holder's rights.

What this practically means

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Executive summary

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Mwanamkasi Hamisi Nimambeya filed an Originating Summons dated 9th November 2021 seeking to be declared owner of Kwale/Diani/390 through adverse possession, claiming she had lived and farmed the land with her extended family for over 40 years. The Respondent, Orazio Mazzonetto, registered as absolute proprietor on 16/07/2009, filed a preliminary objection which was dismissed on 19th October 2022 for want of merit. The Originating Summons was later amended to include subdivisions Kwale/Diani/5143 to Kwale/Diani/5170 allegedly created during the suit to defeat the claim. The Respondent never filed a defence despite being given an extension, and the suit proceeded exparte on 5/10/23 after service. PW1 testified and produced a title deed, green card extract and official search confirming the Respondent's registration, together with photographs of her dwelling and livestock. A County Land Surveyor's report dated 16/3/2022 confirmed beacons conforming to the map and the Applicant's physical possession, including a residential house, fencing, mature trees and livestock. The court invoked section 173(1) of the Evidence Act to confirm the Applicant's age (born 1960). Applying sections 7, 13 and 38 of the Limitation of Actions Act and established case law, the court held the Applicant had proved open, continuous and uninterrupted adverse occupation exceeding 12 years, uncontroverted by the Respondent. The court declined to determine the alleged subdivisions as unsupported by the register, and entered judgment for the Applicant, extinguishing the Respondent's title, ordering registration of the Applicant as absolute proprietor, and awarding costs to the Applicant.

Key legal issues

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01

Whether the Applicant proved registration of the suit property in a third party's name

Holding

Proved - title deed, green card and official search all showed Orazio Mazzonetto as absolute proprietor since 16/07/2009

Reasoning

PW1 produced a copy of the title deed showing Orazio Mazzonetto as absolute proprietor, an extract of the green card showing him as 4th proprietor, and an official search by the Land Registrar dated 26/10/21 confirming registration as at 16.7.2009. The court found no doubt the land was registered to a third party and not the Plaintiff.

p. 4
02

Whether the Applicant was in open, continuous and uninterrupted occupation for over 12 years

Holding

Yes - occupation for over 40 years, corroborated by the County Land Surveyor's report of 16/3/2022, and uncontroverted by the Respondent

Reasoning

The Applicant testified she had lived and farmed the land with her family for over 40 years, building permanent dwellings and keeping animals. The surveyor's report confirmed physical possession, residential house, fencing, mature trees and livestock. The Respondent adduced no evidence of interruption; the wall-construction claim was dismissed as statements from the bar, leaving PW1's evidence uncontroverted.

p. 4
03

Effect of the alleged subdivision of the suit property during the pendency of the suit

Holding

The court declined to determine the subdivisions as they were not supported by the register and dealt with the suit as the parent parcel

Reasoning

The Originating Summons was amended to include subdivisions Kwale/Diani/5143 to Kwale/Diani/5170 allegedly created during the proceedings to defeat the claim. However, the court found the subdivision unsupported by the register and chose to proceed with the original parcel, referring to it as Kwale/Diani/390 (misrendered as 309 in one passage).

p. 5

Legal principles established

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  • Adverse possession for the statutory period of 12 years extinguishes the registered owner's title and right to recover land.
  • The claimant must prove open, continuous, uninterrupted possession without force, secrecy or permission, with the knowledge of the registered owner.

Court orders

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  1. 1.A declaration that the title deed of Orazio Mazzonetto over Kwale/Diani/390 has been extinguished by the Applicant's adverse possession for a period of 12 years
  2. 2.An order directing the Land Registrar, Kwale Land Registry, to register the Applicant Mwanamkasi Hamisi Nimambeya as the absolute proprietor of Kwale/Diani/390
  3. 3.Costs to the Applicant

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 13
  • Limitation of Actions Actsection 38
  • Limitation of Actions Actsection 9(1)
  • Evidence Actsection 173(1)
  • Halsbury's Laws of England (3rd Edition)Vol 24, paragraphs 481 and 482

Cases cited (5)

  • Gideon Mwangi Chege v. Joseph Gachanja Gitutho
    (2015) eKLR
  • Muraguri Githitho v Mathenge Thiongo
    [2009] eKLR
  • Kimani Ruchine v Swift, Rutherford & Co. Ltd
    (1980) KLR 10
  • Wanyoike Gathure v Berverly
    (1965) EA 514
  • Omukaisi Abulitsa v Albert Abulista, Kakamega HCCC No. 86 of 2005 (UR)
    Kakamega HCCC No. 86 of 2005 (UR)
Jurisdiction invoked
Sections 7, 13 and 38 of the Limitation of Actions Act (Cap 22); section 38 application for registration as proprietor through adverse possession

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, "Nimambeya v Mazzonetto (Environment & Land Case E003 of 2021) [2024] KEELC 4145 (KLR)", Case Analysis (2024). Environment & Land Case E003 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4145/eng@2024-03-20

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