[2012] KEHC 4104 (KLR)
The court found that the applicant had occupied the suit land openly, continuously, and without interruption for over twelve years, having entered into possession in 1985. The respondents, despite being served, failed to contest the claim or file any response. The applicant's evidence was unchallenged and credible....
Source-derived case information.
- Citation
- [2012] KEHC 4104 (KLR)
- Parties
- Applicant: David Chege; Respondent: Grace Wangechi Nyamweru; Respondent: Nyonia Giakwa Holdings Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1412 of 2005
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the applicant; prayers 1-4 of the originating summons granted; applicant to bear costs.
- Judges
- FI Koome
- Legal Topics
- Adverse Possession, Limitation of Actions, Land Registration, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Chege
Applicant
Grace Wangechi Nyamweru
Respondent
Nyonia Giakwa Holdings Limited
Respondent
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the applicant has acquired title to the suit land by adverse possession for over twelve years.
- 2 Whether the applicant is entitled to be registered as the sole proprietor of the suit land in place of the respondents.
- 3 Whether the respondents should be compelled to execute a transfer of the suit land to the applicant.
Ratio Decidendi
The court found that the applicant had occupied the suit land openly, continuously, and without interruption for over twelve years, having entered into possession in 1985. The respondents, despite being served, failed to contest the claim or file any response. The applicant's evidence was unchallenged and credible. Under the Limitation of Actions Act, the applicant had acquired title to the land by adverse possession. The court was satisfied that the applicant had proved his case on a balance of probabilities and was entitled to the orders sought, except as to costs, which were awarded against the applicant since the respondents did not oppose the claim.
Court Disposition
Judgment for the applicant; prayers 1-4 of the originating summons granted; applicant to bear costs.
Orders
- The applicant is declared to have become the legal owner entitled by adverse possession of plot numbers 130 and 137, formerly part of LR NO. 8469/4 and LR NO. 36766, Kasarani, Hunter Estate.
- The applicant shall be registered as the sole proprietor of the said parcels of land in place of the respondents.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL SUIT 1412 OF 2005
DAVID CHEGE...........................................................APPLICANT
VERSUS
GRACE WANGECHI NYAMWERU & ANOTHER.......RESPONDENTS
JUDGMENT
DAVID CHEGE,(applicant) instituted this suit by way of an originating summons on 25th November, 2005. This suit is against GRACE WANGECHI NYAMWERU, (the 1st respondent) and NYONIA GIAKWA HOLDINGS LIMITED, (the 2nd respondent).
The applicant is seeking for the following orders:
1. That the applicant be declared to have become the legal owner entitled by adverse possession of over twelve [12] years since 1985 of all those parcels of land to wit: plot numbers 130 and 137 being part of all that formerly known as LR NO. 8469/4 and of title no LR NO. 36766 situated at Kasarani, Hunter Estate.
2. That the said applicant be registered as the sole proprietor of the above said parcels of land in place of the respondents in whose favour the said parcels of land is registered.
3. That the respondents who presently have title to the land do survey the land wherein the said plots are comprised and excise plot numbers 130 and 137 measuring approximately 60 by 40 feet from the said land formerly known as LR NO 8469/4 of Title number LR 36766 at the applicant’s expense.
4. That the respondents who presently have title to the said land do execute a transfer of the suit land in favour of the applicant, and in default, the Deputy Registrar of this Court do execute the same.
5. Costs of this suit be paid by the respondents.
This application is supported by a lengthy affidavit by the applicant which was sworn on 3rd November, 2005. The applicant has given a detailed chronology of how he occupied the suit premises in 1985 on the invitation of the 1st respondent who had purchased the plots from the 2nd respondent.
This suit and subsequent pleadings were all served upon the respondents. They failed to enter appearance and on 15th October, 2010, directions were given that this matter be heard by way of oral evidence. This matter came up for hearing before me on 8th December, 2011.
The applicant testified that in 1985, he was invited by the 1st respondent (the 1st respondent is the applicant’s sister) to occupy and take possession of her two plots known as plot numbers 147 and 148 measuring 60 by 40 feet situated at Kasarani Hunters Estate. The 1st respondent was a shareholder of the 2nd respondent who was a land buying company.
The applicant took possession of these two plots in 1985 and constructed his house and developed the plot where he has been living with his family without any interference from anybody for a period of over twelve [12] years. According to the applicant, he is entitled by way of adverse possession under the provisions of the Limitations of Actions Act.
The 1st respondent is a sister of the applicant. Both the 1st and 2nd respondents were served with the pleadings in this matter and they failed to enter appearance or file any reply. The record shows that on 27th November, 2009, the 1st respondent appeared in court and was given leave to file a replying affidavit within fourteen [14] days. However, there seems to be no compliance with that order, thus the applicant’s suit is not controverted.
Going by the applicant’s sworn affidavits and his oral evidence, I am satisfied that he has been able to prove his claim against the defendants on a balance of probabilities.
Accordingly, I hereby grant prayer number one to four [1-4] of the Originating Summons.
However, the applicant shall bear the costs of this suit as the respondents did not oppose this claim.
Judgment read and signed this 30th day of March, 2012.
MARTHA KOOME
JUDGE OF APPEAL
Note:
This application was heard and concluded on 8th December, 2011, when I was a Judge of the High Court. The matter was pending for ruling when I was appointed as a Judge of the Court of Appeal. I proceeded to write and append my signature thereto in my new capacity.