Masila & 2 others v Krotonite Enterprises Limited (Miscellaneous Application 31 of 2018) [2024] KEELC 5982 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs proved adverse possession of the suit property
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
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.
Whether the Plaintiffs were entitled to the prayers in the originating summons
Yes - the Plaintiffs made out a case for adverse possession and were entitled to registration as proprietors
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.
Who bears the costs of the suit
The Plaintiffs, having proved their claim, were awarded the costs of the suit
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.
Legal principles established
#- 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
#- 1.Judgment entered in favour of the Plaintiffs as per the Amended Plaint dated 18th April, 2018
- 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.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.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.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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.