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ELCDismissedOriginating Summons dated 31st October, 2022· [2024] KEELC 7094 (KLR)

Mutune & 48 others v Numerical Machining Complex Ltd & another (Enviromental and Land Originating Summons E025 of 2022) [2024] KEELC 7094 (KLR)

Environment and Land Court
28 October 2024
COChristine Ochieng
4,121 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court in Machakos dismissed 49 people's claim to own land through long-term occupation because they couldn't prove when they entered or occupied it continuously.

What this practically means

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Executive summary

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Forty-nine Applicants, led by Jane Ndululu Mutune, brought an Originating Summons dated 31st October 2022 against the Industrial Development Corporation (1st Respondent) and the registered owner of LR No 26700/4 (2nd Respondent), seeking declarations that they had acquired title by adverse possession to land in Mavoko, Machakos County, and orders that Certificates of Title issue in their names. They claimed to have settled on the land without consent, building houses, schools and churches, constructing roads, rearing livestock and burying their dead, without interference from the Respondents. The 1st Respondent denied any remaining proprietary interest after transferring LR No 26700/4 to Brenos Limited in 2003/2009 and relied on taskforce findings on organised land invasions in Mavoko. The 2nd Respondent asserted registered title since November 2009, due diligence, a perimeter wall, borehole and caretaker, and said the Applicants' structures were recent fabrications. The court, Christine Ochieng J, framed three issues and applied Sections 13 and 38 of the Limitation of Actions Act and the ingredients of adverse possession from Haro Yonda Juaje. Relying heavily on a Deputy Registrar's site visit report of 4th July 2023, which found only a wall, few new structures, no livestock, burials or schools, and police confirmation that the land was vacant until November 2022, the court held the Applicants failed to prove their date of entry, an identifiable portion, and 12 years of continuous open possession. The claim was dismissed with costs to the Respondents on 28th October 2024.

Key legal issues

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01

Whether the Applicants acquired LR No 26700/4 by adverse possession

Holding

No. The Applicants failed to prove the essential ingredients of adverse possession, particularly the date of entry and continuous uninterrupted possession for the statutory period.

Reasoning

The Applicants relied solely on affidavit evidence without viva voce evidence, and none confirmed the exact date of entry or the identifiable portion each occupied. The Deputy Registrar's site visit report of 4th July 2023 found a perimeter wall, few new iron sheet structures, no livestock, no burials witnessed by the former area chief, and the Officer Commanding Sabaki Police Post confirmed the land was vacant until November 2022. The claimed schools, roads, graves and livestock were not found. All ingredients of adverse possession must be fulfilled; the claim therefore failed.

p. 7
02

Whether the Originating Summons was merited and who bears costs

Holding

The summons was not merited and was dismissed with costs to the Respondents.

Reasoning

Having found that the Applicants did not prove adverse possession on a balance of probability, the suit fell to be dismissed. Costs follow the outcome. The court noted the 2nd Respondent does not enjoy proprietary rights over the suit land as registered, having lost them on transfer, and was in that sense inconvenienced, yet directed that the Applicants pay the costs of the suit generally.

p. 7

Legal principles established

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  • For a claim of adverse possession to succeed, the claimant must prove the date of entry to establish when time began to run, non-permissive entry, animus possidendi, acts inconsistent with the owner's enjoyment, and continuous uninterrupted possession for 12 years
  • Time for adverse possession does not run until the registered owner becomes aware of the occupation and fails to assert rights for at least 12 years
  • Land adversely possessed must be definitely identified or defined with an ascertainable boundary

Court orders

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  1. 1.The Applicants' claim for adverse possession over LR No 26700 (and the suit parcel LR No 26700/4) is dismissed
  2. 2.The Applicants to pay the costs of the suit
Jurisdiction invoked
Original jurisdiction under Sections 7, 13 and 38 of the Limitation of Actions Act and Order 38 of the Civil Procedure Rules, by Originating Summons for 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, "Mutune & 48 others v Numerical Machining Complex Ltd & another (Enviromental and Land Originating Summons E025 of 2022) [2024] KEELC 7094 (KLR)", Case Analysis (2024). Originating Summons dated 31st October, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7094/eng@2024-10-28

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