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ELCDismissedELC Case No. E011 of 2022 (OS)· [2024] KEELC 4653 (KLR)

Makau & 25 others v Noor & another (Enviromental and Land Originating Summons 11 of 2022) [2024] KEELC 4653 (KLR)

Environment and Land Court of Kenya
4 June 2024
23,835 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~95 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Twenty-seven Plaintiffs brought an Originating Summons, later converted to an Amended Plaint, against Ahmed Siraj Noor and Aisha Faraj Mohamed claiming title to Title Number MN/1/18815 (subdivided into over 130 plots in Utange, Mombasa) by adverse possession, alleging occupation since 2004, and further alleging fraud in the registration of the 1st Defendant's title, including land registry entries purportedly made on a Sunday. The Defendants denied the Plaintiffs ever occupied the land, relying on a surveyor's report, google satellite imagery and the fact that the Plaintiffs were evicted in 2018. The court framed four issues: whether the Plaintiffs acquired title by adverse possession, whether they were entitled to the suit property, whether the challenge to the 1st Defendant's title was sustainable, and costs. Setting out the ingredients of adverse possession under Sections 7, 13 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, the court applied the statutory 12-year requirement to the evidence. The Deputy Registrar's site visit report and interviews showed contradictory claims, no identifiable exclusive occupation, and the Government Surveyor's satellite images showed the land was vacant bush until about 2018, by which time the Plaintiffs had been evicted. The court found the Plaintiffs had not established 12 years of open, continuous, non-permissive possession, and dismissed the fraud claim, holding the Sunday entries were a clerical error by the Land Registry for which the registered proprietor was not responsible. The Plaintiffs' Amended Plaint was dismissed in its entirety with costs to the Defendants, borne jointly and severally by the Plaintiffs.

Key legal issues

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01

Whether the Plaintiffs acquired title by adverse possession

Holding

No. The Plaintiffs did not prove 12 years of continuous, open, non-permissive and hostile occupation; satellite imagery, surveyors' reports and the Deputy Registrar's site visit showed the land was vacant bush until 2018 and the Plaintiffs admitted eviction in 2018

Reasoning

The court set out the ingredients of adverse possession, including physical entry, non-permissive occupation, animus possidendi, open and notorious possession, exclusivity, and continuous uninterrupted possession for the statutory period. Applying these, the claimants' testimonies were contradictory on dates of entry and settlement, they were evicted in 2018, and google satellite images showed no settlement before 2018. Possession did not run for the requisite 12 years and the claim failed on a balance of probability.

p. 46
02

Whether the Plaintiffs are entitled to the suit property

Holding

No. Since the Plaintiffs failed to prove the requisite occupation and the 12-year period, they are not entitled to the suit property

Reasoning

The court relied on the satellite photographs and the fact that the Plaintiffs never hired a valuer to controvert the surveyor's report. Hostile possession denying the registered owner's title was never established, and the Plaintiffs' contradictory evidence on when occupation began disqualified the claim.

p. 47
03

Whether the legality of the 1st Defendant's title is sustainable

Holding

Yes. The alleged fraud based on land registry entries dated a Sunday was not proved; the dates were a clerical error by registry staff for which the registered proprietor is not responsible

Reasoning

Title documents are typed and issued by the land registry, not the registered proprietor. The 1st Defendant did not carry out the sub-division issuance himself and had no control over official stamps. Following the reasoning in Kenya Oil Company Limited v Jayantilal Dharamshi Gosrani, the date confusion was sufficiently explained by production of the resultant title documents, and no misrepresentation, illegality or fraud was established.

p. 47

Legal principles established

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  • A claim for title to land through the doctrine of 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 and cannot be assumed from mere exclusive possession, however long; there must be a clear intention to hold adversely under a claim of right
  • A party claiming adverse possession must assert hostile title in denial of the registered proprietor's title and the 12-year period must start with a wrongful dispossession of the registered proprietor

Court orders

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  1. 1.Judgment be and is hereby entered in favour of the 1st and 2nd Defendants
  2. 2.The amended Plaint filed herein dated 28th November, 2023 by the Plaintiffs be and is hereby found to lack merit and thus is dismissed in its entirety with costs
  3. 3.Costs of the suit to be awarded to the 1st and 2nd Defendants and be borne by the Plaintiffs jointly and severally
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010; Section 13 of the Environment and Land Court Act; Section 38 of the Limitation of Actions Act, Cap 22

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Makau & 25 others v Noor & another (Enviromental and Land Originating Summons 11 of 2022) [2024] KEELC 4653 (KLR)", Case Analysis (2024). ELC Case No. E011 of 2022 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4653/eng@2024-06-04

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