Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case No. 585 of 2005 (OS)· [2024] KEELC 4677 (KLR)

Hamisi v Maina & 2 others; Nyamawi & 5 others (Interested Parties) (Environment & Land Case 585 of 2005) [2024] KEELC 4677 (KLR)

Environment and Land Court
11 June 2024
NMN.A. MATHEKA
2,369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Mombasa court declared a 40-year occupant owner of the plot portion he actually occupies, but denied his claim over land he does not physically possess.

What this practically means

#

Executive summary

#
This is an old originating summons filed on 4th August 2005 by the plaintiff/applicant seeking declaratory relief of adverse possession over plot Nos. Mombasa/MN/III/1112 and Mombasa/MN/III/1111. The applicant claimed to have been in occupation for over forty years, developing the land with a residential house, farming and livestock keeping, and that he was discriminated against when the plots were allocated to the 1st, 2nd and 3rd respondents instead of him. He also sought orders of certiorari to cancel the respondents' titles and mandamus to compel the Attorney General to issue fresh titles in his name. The 2nd respondent denied the applicant's occupation, alleging trespass from 2007. Interested parties claimed the suit properties were known as MN/III/324 and 334 and that the late Mwinyi Hamisi (the applicant's father) did not validly obtain titles. Only the applicant testified. The court traced the history of the properties through earlier litigation in Mombasa HCCC 732 of 1991 and Court of Appeal C.A 125 of 2017. Relying on the authorities on adverse possession, the court held that time began running on 23rd June 1989 when the property was registered in the 1st respondent's name, and that the filing of HCCC 732 of 1991 did not interrupt time since the true owners were not joined. The court found that the applicant occupies only a portion of MN/III/1112 through adverse possession and not the whole of the two plots, and made a declaration to that effect with an order for transfer within 90 days. There were no orders as to costs.

Key legal issues

#
01

Whether the applicant proved adverse possession of MN/III/1111

Holding

Not proved; the applicant is in possession of a portion of MN/III/1112 only

Reasoning

The applicant himself admitted he was not in possession of the whole of the suit properties. The claim over MN/III/1111 failed because the applicant does not occupy it. The prescriptive rights of the applicant's late father had been interrupted and the court found occupation of only a portion of MN/III/1112 to have been established.

p. 5
02

When time for adverse possession began to run over MN/III/1112

Holding

Time began running on 23rd June 1989 when the property was registered in the name of the 1st respondent

Reasoning

The court held that adverse possession could not run before registration of the property in the name of the true owner. The late Mwinyi Hamisi's prescriptive rights terminated when MN/III/324 was surrendered to the government. Filing of HCCC 732 of 1991 did not stop time as the true owners were not joined in that suit.

p. 4

Legal principles established

#
  • A claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner
  • Time for adverse possession ceases to run when the owner asserts his right by taking legal proceedings or by effective entry into the land
  • He who asserts or pleads must support the same by way of evidence

Court orders

#
  1. 1.The plaintiff be declared the owner of a portion in MN/III/1112 which he occupies and to which he is entitled by virtue of adverse possession
  2. 2.The defendants/respondents be ordered to transfer the said portion of the suit land to the plaintiff/applicant within 90 days from the date of judgment, and in default the Deputy Registrar to sign the transfer documents
  3. 3.No orders as to costs

Authorities

#

Legislation

  • Limitation of Actions Actsection 41
  • Limitation of Actions Actsection 7
  • Evidence Actsections 107 and 108

Cases cited (9)

  • Mtana Lewa v Kahindi Ngala Mwagandi
    C.A No. 16 of 2016
  • Mbira v Gachuhi
    (2002) IEALR 137
  • Gabriel Mbui v Mukindia Maranya
    C.A No. 283 of 1990 (1993) eKLR
  • Samuel Miki Waweru v Jane Njeru Richu
    Civil Appeal No. 122 of 2001
  • Jandu v Kirpal
    [1975] EA 225
  • Kirutu v Kabura
    C.A. No. 20 of 1993 (unreported)
  • Githu v Ndeete
    [1984] KLR 776
  • Janet Kaphiphe Ouma & Another v Marie Stopes International (Kenya)
    Kisumu HCCC No. 68 of 2007
  • Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
Jurisdiction invoked
Originating summons for adverse possession under the Limitation of Actions Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hamisi v Maina & 2 others; Nyamawi & 5 others (Interested Parties) (Environment & Land Case 585 of 2005) [2024] KEELC 4677 (KLR)", Case Analysis (2024). ELC Case No. 585 of 2005 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4677/eng@2024-06-11

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