[2014] KEHC 6900 (KLR)

COPY

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

HIGH COURT CIVIL SUIT NO. 119 OF 2010 [O.S.[

IN THE MATTER OF: AN APPLICATION FOR ADVERSE POSSESSION UNDER SECTION 38 OF THE LIMITATION OF ACTIONS ACT AND ORDER XXXVI RULE 3 (D) OF THE CIVIL PROCEDURE RULES.

BETWEEN

BENSON KIBUGI RIGII ......................................................... PLAINTIFF

- V E R S U S -

1. ROSHAN NAZERAJI JIWA

2. ROSEMIN NAZERALI JIWA

3. ANWAR NAZERALI JIWA

4. ABDULKADIR MOHAMED HUSSIN KADERDINA

5. ABDULHAMID MOHAMED HUSSEIN ........................... DEFENDANTS

JUDGEMENT

[1] The plaintiff in this case filed this originating summons and prayed to be registered as the owner of all that piece of land known as Subdivision number MN/11/4886 excised from Plot Number 166/11/MN comprised in the certificate of Title Number C.R. 29271. He claims he acquired the same by adverse possession.

The plaintiff gave evidence that he lives on the said Plot 886 Section II Mainland North. He said he has build and has been living on it for 20 years. That he entered the plot pursuant to a sale to him by one Anwar Nezelali Jiwa. He said he paid 10% of the consideration for Kshs. 400,000. That after he paid Kshs. 40,000 he has not seen the said Anwar Nezelali Jiwa again. That he started to build after he paid the said Kshs. 40,000. He had the land surveyed by one Edward Kiguri Land Surveyor. He produced a letter of authority to survey dated 18th February 1992 and a receipt for survey dated 8th February, 1992. He produced a deed plan No. 4886 for Section II Mainland North. He thereafter got a provincial title from the land office which he produced in Court, also produced was a receipt for application for a consent from the Land Control Board of 16th August, 1993. He said he did not enter the plot with the consent of anybody and that he lives exclusively on the plot alone. He prayed for a declaration of adverse possession.

[2] In his submission, the plaintiff applicant stated that although he entered the land through purchase and paid Kshs. 40,000 out of the purchase price of Ksh. 400,000 there was no agreement for the disposition of the interest in land since the formalities stipulated under Sec 3 of the Law of Contract Act which was in place then were not complied with.1. That in absence of a written contract or a Memorandum in writing there was no valid agreement between the parties. That the property was owned by various owners and no consent was given by either.

That the plaintiff entered into possession without the consent of either and the plaintiff/applicants continued with open and exclusive possession thereof since 1992 and remained in uninterrupted adverse occupation of the same for a period of 21 years.

[3] He subdivided his portion, clearly demarcation the same, paid Municipal Council of Mombasa Rates interest and penalties and has constructed a residential house therein. The defendant respondent was duly served and did not enter appearance or attend the hearing herein.

The plaintiffs evidence is therefore unchallenged.

[4] I have perused all the authorities cited herein. I am satisfied on the balance of probabilities that the plaintiff has acquired title in Land Parcel No. MN/11/4886 having stayed on the same for over 21 years and he shall be so registered as owner thereof.

Dated and delivered at Mombasa in open Court this 21st day of February, 2014.

S.N. MUKUNYA

JUDGE

21. 2.2014

In the presence of:

Wafula Advocate for Omondi Waweru Advocate for the defendant.

1 Sec.3 - No suit shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriages of another person unless the agreement upon which such suit is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereto by him lawfully authorized.