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ELCDismissedOriginating Summons dated 22nd February 2021 (number not stated in judgment)· [2024] KEELC 5431 (KLR)

Tangeya & 3 others v Sunderji & another (Enviromental and Land Originating Summons 93 of 2021) [2024] KEELC 5431 (KLR)

Environment and Land Court
23 July 2024
1,685 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Four Mombasa claimants lost their bid to own land through adverse possession because they could not prove 12 years of open, uninterrupted occupation.

What this practically means

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Executive summary

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Four plaintiffs filed an originating summons dated 22nd February 2021 seeking to be registered as proprietors in common of Title No. Mombasa/Block IX/260 by adverse possession, together with a permanent injunction restraining the defendants from interfering with their possession. They claimed occupation since 1990 under allotment letters issued by the Jua Kali Mombasa Association. The defendants, brothers registered as joint lessees from 1st March 1994 (certificate of title issued 13th September 1995), denied the claim, asserting the plaintiffs invaded the vacant plot in 2005 under the Jua Kali Association, and that earlier suits, HCCC 193 of 2005 and HCCC 7 of 2006, concerned the same property. The court framed two issues: whether the plaintiffs met the threshold for adverse possession, and who bears costs. Applying Maweu v Liu Ranching and the Samuel Miki Waweru dictum, the court held the plaintiffs failed to prove open, exclusive and uninterrupted possession: they called no witnesses to prove occupation from 1992, possession was only provable from 2005, and it was interrupted by the earlier court cases whose outcomes neither party produced, rendering the suit potentially sub judice or res judicata. The court also expressed doubt about the validity of the defendants' certificate of title, since a physical planning officer had indicated the land was not 'committed', and no expert such as the land registrar testified. On the balance of probabilities the suit failed. The originating summons was dismissed with costs to the defendants, costs following the event under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the plaintiffs proved the requisite adverse possession of Mombasa/Block IX/260 for the statutory period

Holding

The plaintiffs failed to prove open, exclusive and uninterrupted possession for over 12 years; possession was provable only from 2005 and was interrupted by pending court cases, and their claim failed on a balance of probabilities

Reasoning

The plaintiffs claimed occupation since 1990/1992 based on Jua Kali Association allotment letters, but the court found no witness testimony proving continuous possession from 1992. The suit was interrupted by HCCC 193 of 2005 and HCCC 7 of 2006 whose outcomes were never produced. The defendants' title itself was doubted since a physical planning officer indicated the land was not 'committed', yet no expert such as the land registrar testified. Both sides failed on proof.

p. 4
02

Whether the suit is sub judice or res judicata given earlier suits between the same parties over the same property

Holding

The suit is either sub judice or res judicata owing to the similarity of parties and subject matter with HCCC 193 of 2005 and HCCC 7 of 2006, whose outcomes neither party proved

Reasoning

The 1st defendant testified that the parties were involved in HCCC 7 of 2006 (eviction of five claimants) and that Jua Kali Mombasa Association filed HCCC 193 of 2005 seeking a declaration of ownership. Neither side produced the outcomes of these cases, so the court could not determine whether the present claim duplicated or conflicted with them.

p. 4
03

Whether the defendants' certificate of title is valid

Holding

The court registered doubt about the validity of the defendants' title because a physical planning officer's letter of 31st March 2005 indicated the property had not been 'committed' and remained subject to a government ban on allocation

Reasoning

Although the certificate of title showed registration of the defendants on 13th September 1995, the correspondence from Mwaita K.M. suggested the land was still unallocated government land at that time. The defendants produced no evidence of open, exclusive and uninterrupted possession, and no expert evidence (such as from the land registrar) was called to verify the title.

p. 3
04

Who bears the costs

Holding

Costs follow the event under Section 27 of the Civil Procedure Act; the plaintiffs bear the costs

Reasoning

Having dismissed the originating summons, the court applied the general rule that costs follow the event under Section 27 of the Civil Procedure Act, ordering the unsuccessful plaintiffs to pay the costs of the suit.

p. 4

Legal principles established

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  • To prove title by adverse possession, possession must be adequate, continuous, public, and adverse to the registered owner; possession is a matter of fact depending on all circumstances
  • A claim of adverse possession cannot succeed where possession is with the owner's permission or under a sale agreement or lease; possession does not become adverse before the permitted period expires
  • Illegality, once brought to the attention of the court, overrides all questions of pleading including admissions

Court orders

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  1. 1.The plaintiffs' originating summons dated 22nd February 2021 is dismissed
  2. 2.The plaintiffs are to bear the costs of this suit
Jurisdiction invoked
Section 38(1) and (2) of the Limitation of Actions Act, Cap 22 - application to the High Court (now Environment and Land Court) for registration as proprietor by 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, "Tangeya & 3 others v Sunderji & another (Enviromental and Land Originating Summons 93 of 2021) [2024] KEELC 5431 (KLR)", Case Analysis (2024). Originating Summons dated 22nd February 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5431/eng@2024-07-23

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