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ELCPartially AllowedELC No 35 of 2019 (consolidated with ELC No 63 of 2020)· [2024] KEELC 4985 (KLR)

Khaki & 5 others v Juma & 4 others (Environment & Land Case 35 of 2019 & Environment & Land Miscellaneous Case E063 of 2020 (Consolidated)) [2024] KEELC 4985 (KLR)

Environment and Land Court
1 July 2024
3,566 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Mombasa Land Court ruled that long land occupation counts for nothing in Kenya unless you can prove 12 unbroken years of possession with solid evidence.

What this practically means

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Executive summary

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The plaintiffs, registered proprietors since 1990 of plot No 344/1/MN (CR 1852), Utange, Mombasa, sued Saidi Juma and Ngolo Mbaya for a declaration of ownership, eviction, demolition of structures, and a permanent injunction, alleging invasion of the land in 2019. The defendants denied trespass, claimed to have occupied the land openly for over 17 years alongside about 29 families, and counterclaimed for a declaration of title by adverse possession. They also filed Mombasa ELC (OS) No 63 of 2020 against the plaintiffs seeking adverse possession relief, which was consolidated with ELC No 35 of 2019 on 27th July 2022. In the consolidated hearing, the plaintiffs testified that they inherited and farmed the land until 2019, supported by a surveyor's report finding 15 mostly recently built structures. The applicants relied on their own testimony, a surveyor's report showing 22 structures, and a retired Assistant Chief who recalled 2017 demolitions. The court held that the plaintiffs' registered title under section 25(1) of the Land Registration Act stood, subject only to overriding interests such as adverse possession under section 28(h). The applicants failed to prove 12 years of peaceful, continuous and uninterrupted possession: structures were largely less than 12 years old, possession was interrupted by the 2017 and 2018 demolitions, and their claims of possession through deceased fathers were unsupported as they did not sue as legal representatives of the estates. Both the counterclaim and the adverse possession claim were dismissed, judgment entered for the plaintiffs as per prayers (i) to (iii) of the plaint, and each party ordered to bear its own costs in both suits.

Key legal issues

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01

Whether the defendants/applicants proved adverse possession of the suit property for over 12 years

Holding

No. Their claim of possession since 2003 was uncertain and unproved; structures were mostly recent, and possession was interrupted by demolitions in 2017 and 2018.

Reasoning

The court found the registered owners undisputed. DW1 and DW2 claimed possession through deceased fathers whose estates they did not represent, so any occupation ran independently only after the deaths. Surveyors' evidence showed structures of less than 12 years, many recently built or reconstructed after demolitions, and inconsistent counts of structures and families. The evictions of 2017 and 2018 interrupted any possession, defeating continuity of adverse possession for the statutory 12 years.

p. 7
02

Whether the plaintiffs are entitled to eviction and demolition as registered proprietors

Holding

Yes. As registered proprietors since 1990, their title under section 25(1) of the Land Registration Act stands, unencumbered by any proved overriding interest, and they proved trespass by persons entering in 2019.

Reasoning

The court found no dispute that the plaintiffs were registered proprietors since 1990, an ownership acknowledged in the defendants' own pleadings. The only potential override, rights under limitation of actions, failed for want of proof of 12 years' adverse possession. The plaintiffs therefore established entitlement to the declaratory, eviction/demolition and injunctive prayers in the plaint.

p. 5

Legal principles established

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  • A registered proprietor's title under section 25(1) of the Land Registration Act is subject to overriding interests including rights acquired by adverse possession under section 28(h).
  • A party asserting adverse possession bears the burden of proving continuous uninterrupted possession for at least 12 years to the standard of balance of probabilities.

Court orders

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  1. 1.The defendants/applicants' counterclaim in ELC No 35 of 2019 and adverse possession claim in ELC No 63 of 2020 are dismissed for failure to prove to the standard of balance of probabilities.
  2. 2.Judgment is entered for the plaintiffs/respondents in ELC No 35 of 2019 against the defendants as per prayers (i) to (iii) of the plaint dated 28th February 2019 (declaration of ownership, eviction and demolition, and permanent injunction).
  3. 3.Each party to bear their own costs in both suits.

Authorities

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Legislation

  • Land Registration Act, No 3 of 2012section 25(1)
  • Land Registration Act, No 3 of 2012section 28(h)
  • Limitation of Actions Act, Chapter 22 of Laws of Kenyasection 7
  • Limitation of Actions Act, Chapter 22 of Laws of Kenyasection 38(1)
  • Evidence Act, Chapter 80 of Laws of Kenyasection 107
  • Civil Procedure Act, Chapter 21 of Laws of Kenyasection 27
  • Civil Procedure RulesOrder 37 Rule 7
  • Constitution of KenyaArticle 40
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land and environment disputes); consolidated suits heard in ELC No 35 of 2019

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, "Khaki & 5 others v Juma & 4 others (Environment & Land Case 35 of 2019 & Environment & Land Miscellaneous Case E063 of 2020 (Consolidated)) [2024] KEELC 4985 (KLR)", Case Analysis (2024). ELC No 35 of 2019 (consolidated with ELC No 63 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4985/eng@2024-07-01

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