Makau & 25 others v Noor & another (Enviromental and Land Originating Summons 11 of 2022) [2024] KEELC 4653 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs acquired title by adverse possession
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
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.
Whether the Plaintiffs are entitled to the suit property
No. Since the Plaintiffs failed to prove the requisite occupation and the 12-year period, they are not entitled to the suit property
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.
Whether the legality of the 1st Defendant's title is sustainable
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
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.
Legal principles established
#- 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
#- 1.Judgment be and is hereby entered in favour of the 1st and 2nd Defendants
- 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.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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Baya v Ahmed (Environment & Land Case E007 of 2023) [2024] KEELC 6999 (KLR)[2024] KEELC 6999 (KLR)16 Oct 2024
- Baya v Ahmed (Environment & Land Case E007 of 2023) [2024] KEELC 6999 (KLR)[2024] KEELC 6999 (KLR)16 Oct 2024followed
Cite this brief
#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.