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ELCAllowedNot stated in the judgment (Originating Summons/Plaint filed 9th February 2018)· [2024] KEELC 5982 (KLR)

Masila & 2 others v Krotonite Enterprises Limited (Miscellaneous Application 31 of 2018) [2024] KEELC 5982 (KLR)

Environment and Land Court
18 September 2024
11,009 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This first-instance judgment of the Environment and Land Court at Mombasa (Naikuni J) determined an Originating Summons/Plaint filed on 9th February 2018 and amended on 18th April 2018, in which the Plaintiffs claimed title to L.R No. MN/III/5612 (CR. 58960), South Takaungu, Kilifi County, measuring 8.616 hectares, by adverse possession. The Plaintiffs testified that they entered the land in 1993, cleared the bush, farmed, fished, extracted building blocks, erected makuti-thatched structures and buried their kin there, openly and without permission, for over 30 years. The title was registered in the name of 'Krytonite/Krotonite Enterprises Limited' under a 99-year grant commencing 1st June 1997. The entity defending as 'Kryptonite Enterprises Limited', through its director Faraj Mansur Abeid Said and retired Chief David Kahindi Samson, denied the Plaintiffs' occupation and claimed a 2013 rectified title; but it produced no certificate of incorporation, CR-12, allotment letter, receipt or sub-division approvals. The court framed three issues: adverse possession, entitlement to the prayers, and costs. Applying Sections 7, 13, 17 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, and the principles in Maweu v Liu Ranching, Kasuve v Mwaani and related authorities, the court found possession was nec vi, nec clam, nec precario and that title had vested in the Plaintiffs by 2005. It entered judgment for the Plaintiffs, declared them entitled by adverse possession, ordered the Land Registrar to delete the company's name and register the Plaintiffs, directed registration of the subdivided parcels, relieved the Plaintiffs of outstanding rates, issued a permanent injunction against the Defendant, and awarded costs to the Plaintiffs.

Key legal issues

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01

Whether the Plaintiffs proved adverse possession of the suit property

Holding

Yes - the Plaintiffs entered the land in 1993, occupied it openly, peacefully and continuously, and title by adverse possession had vested in them by 2005

Reasoning

The court found the Plaintiffs entered the suit land in 1993, cleared the bush, cultivated, fished, erected structures and buried their kin there continuously for over 30 years without permission or interference. The grant to the registered company ran from 1st June 1997, so by 2005 the 12-year period had run. The entity defending (Kryptonite Enterprises Limited) failed to produce any registration documents and never disproved the Plaintiffs' occupation. Possession was nec vi, nec clam, nec precario.

p. 17
02

Whether the Plaintiffs were entitled to the prayers in the originating summons

Holding

Yes - the Plaintiffs made out a case for adverse possession and were entitled to registration as proprietors

Reasoning

The court held that owing to the nature of orders extinguishing the right to property, the burden on the claimant is higher, but the Plaintiffs discharged it by proving over 12 years' possession. The court therefore granted the declaration, registration, rates-relief and injunctive reliefs sought, and ordered any sub-division done without approvals to be treated as annulled.

p. 18
03

Who bears the costs of the suit

Holding

The Plaintiffs, having proved their claim, were awarded the costs of the suit

Reasoning

Applying Section 27 of the Civil Procedure Act, costs follow the event unless the court for good reason orders otherwise. Since the Plaintiffs established their claim against the Defendant, costs were awarded to them.

p. 19

Legal principles established

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  • The title of a registered proprietor is extinguished in favour of an adverse possessor after 12 years of adverse possession
  • A claimant for adverse possession must prove open, continuous, peaceful and non-permissive possession for the statutory period, i.e. nec vi, nec clam, nec precario

Court orders

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  1. 1.Judgment entered in favour of the Plaintiffs as per the Amended Plaint dated 18th April, 2018
  2. 2.A declaration that the Plaintiffs/Applicants are entitled by virtue of adverse possession of 17 years to L.R No. MN/III/5612 registered as CR. 58960, South Takaungu Township, Kilifi County, containing 8.616 Hectares
  3. 3.An order that the Land Registrar, Mombasa Lands Registry deletes the name of Krytonite Enterprises Limited and registers the names of the Plaintiffs in place thereof absolutely and at no cost
  4. 4.An order that the Chief Land Registrar register the Plaintiffs as the absolute proprietors of land parcels No. 2717/V/MN, 2718/V/MN and 2719/V/MN
  5. 5.An order that the Plaintiffs be released from any obligation to pay outstanding rates in respect of the property and the County Rates department to alter its records to reflect the names of the Applicants as rate payers
  6. 6.A permanent injunction restraining the Defendant, its agents, servants and/or any authorized independent contractor from entering the suit land, demolishing the Plaintiffs' houses, properties or structures, or evicting the Plaintiffs, their families and/or tenants
  7. 7.Costs of the suit in favour of the Plaintiffs
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act and Section 38 of the Limitation of Actions Act

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, "Masila & 2 others v Krotonite Enterprises Limited (Miscellaneous Application 31 of 2018) [2024] KEELC 5982 (KLR)", Case Analysis (2024). Not stated in the judgment (Originating Summons/Plaint filed 9th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5982/eng@2024-09-18

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