Tangeya & 3 others v Sunderji & another (Enviromental and Land Originating Summons 93 of 2021) [2024] KEELC 5431 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiffs proved the requisite adverse possession of Mombasa/Block IX/260 for the statutory period
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
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.
Whether the suit is sub judice or res judicata given earlier suits between the same parties over the same property
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
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.
Whether the defendants' certificate of title is valid
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
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.
Who bears the costs
Costs follow the event under Section 27 of the Civil Procedure Act; the plaintiffs bear the costs
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.
Legal principles established
#- 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
#- 1.The plaintiffs' originating summons dated 22nd February 2021 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.