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ELCPartially AllowedMombasa ELC No. 232 of 2014 (Consolidated with Mombasa ELC No. 3 of 2015)· [2024] KEELC 7366 (KLR)

Kalama & 51 others v Two Thirds Investments Ltd & 4 others (Environment & Land Case 232 of 2014 & 3 of 2015 (Consolidated)) [2024] KEELC 7366 (KLR)

Environment and Land Court
6 November 2024
2,263 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Katana Said Kalama and 40 others sued Two Thirds Investment Ltd by originating summons seeking to be declared owners of plot title CR.1222, MN/11/390 (28.3 acres) by adverse possession, and an order that the registered owner transfer the portions under their occupation, alleging the title was fraudulently acquired. Two Thirds Investment Ltd and others separately sued Katana Said Kalama and 3 others seeking permanent injunction and vacant possession over subdivided parcels; the two suits were consolidated by consent on 2nd December 2018. The defendant's evidence was that it bought the land vacant at auction on 8th April 1993, subdivided it into 158 plots approved in 1996, and offered 17 plots to four families found on the land; most occupants arrived after 2014. S. M. Kibunja J framed four issues. The court held the adverse possession originating summons fatally defective: Order 37 Rule 7 mandatorily requires an extract of title to be annexed, none was, leave to amend lapsed, and a 2022 application to amend had been dismissed. The claim over the parent title also failed because the land no longer existed after subdivision, occupation fell short of 12 years, and a fraud challenge to title should be brought by plaint with proof under sections 107-109 of the Evidence Act. The defendant proved its title and entitlement to injunction and vacant possession against the four named defendants. The originating summons in ELC No. 232 of 2014 was struck out; judgment was entered for the plaintiffs in ELC No. 3 of 2015 in terms of prayers (a) and (b); and, considering the history of the dispute, each party was ordered to bear its own costs in both suits.

Key legal issues

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01

Validity of the adverse possession originating summons

Holding

The originating summons in ELC No. 232 of 2014 was fatally defective for failure to annex an extract of title, and the suit land no longer existed after subdivision into 158 parcels

Reasoning

Order 37 Rule 7 requires the originating summons to be supported by an affidavit annexing an extract of title so ownership can be ascertained. The plaintiffs never annexed an extract, leave to amend lapsed, and a later application to amend was dismissed. The suit property had been subdivided into 158 parcels in 1996, so the claim over a non-existent title failed.

p. 3
02

Whether the 12-year limitation period for adverse possession had accrued

Holding

No adverse possession claim could succeed as the occupation pleaded did not meet the 12-year threshold

Reasoning

Evidence established the defendant bought the land vacant in 1993 and subdivided it from 1996; most occupants moved onto the land after 2014. The suits filed in 2014 and 2015 could not be founded on the requisite 12 years of continuous occupation of specified land.

p. 4
03

Alleged fraud/irregularity in the defendant's title

Holding

No proof of fraud or illegality in acquisition of the defendant's title

Reasoning

DW1 gave a full history of acquisition by public auction in 1993 and lawful subdivision. Fraud must be pleaded and proved to the standard in sections 107-109 of the Evidence Act; the plaintiffs tendered no such proof. The defendant, as registered owner of the subdivided parcels, is entitled to possession and the injunction sought.

p. 5

Legal principles established

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  • An adverse possession claim under Order 37 Rule 7 of the Civil Procedure Rules must be commenced by originating summons supported by an affidavit to which an extract of title to the land is annexed; failure to annex is fatal
  • To succeed in adverse possession a claimant must prove actual, continuous occupation of specified land for at least 12 years
  • A claimant who questions the legality of a registered proprietor's title should commence the claim by plaint, not originating summons, so that fraud can be pleaded and proved under sections 107-109 of the Evidence Act

Court orders

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  1. 1.The plaintiffs' claim through the originating summons filed in Mombasa ELC No. 232 of 2014 is fatally defective and is struck out
  2. 2.Judgment entered for the plaintiffs in ELC No. 3 of 2015 against the four named defendants in terms of prayers (a) and (b) of the plaint dated 20th January 2015 (permanent injunction and vacant possession)
  3. 3.Each party to bear their own costs in both suits

Authorities

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Legislation

  • Limitation of Actions Actsection 38
  • Civil Procedure RulesOrder 37 Rule 7
  • Evidence Actsections 107 to 109
  • Civil Procedure Actsection 27
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court, original jurisdiction over land); suits commenced by originating summons under Order 37 Rule 7 of the Civil Procedure Rules and by plaint

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, "Kalama & 51 others v Two Thirds Investments Ltd & 4 others (Environment & Land Case 232 of 2014 & 3 of 2015 (Consolidated)) [2024] KEELC 7366 (KLR)", Case Analysis (2024). Mombasa ELC No. 232 of 2014 (Consolidated with Mombasa ELC No. 3 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7366/eng@2024-11-06

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