[2017] KEELC 1000 (KLR)
The court found that the plaintiff had been in continuous, exclusive, and uninterrupted occupation of the suit land since 1995, a period exceeding 12 years. The evidence provided by the plaintiff was unchallenged, as the defendants did not file any substantive response or attend the hearing. The court relied on the...
Source-derived case information.
- Citation
- [2017] KEELC 1000 (KLR)
- Parties
- Plaintiff: Endelina Nthengu Mathendu; Defendant: Francis Ntwiki Mukui; Defendant: Janet Kanyua Rwanda
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 25 of 2010
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- suit allowed
- Legal Topics
- Adverse Possession, Land Title Transfer, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Endelina Nthengu Mathendu
Plaintiff
Francis Ntwiki Mukui
Defendant
Janet Kanyua Rwanda
Defendant
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the plaintiff has acquired title to land Tharaka/Tunyai “A” 1011 by way of adverse possession.
- 2 Whether the plaintiff has occupied the suit land continuously, exclusively, and without interruption for at least 12 years.
- 3 Whether the rights and interests of the registered proprietor have been extinguished by adverse possession.
Ratio Decidendi
The court found that the plaintiff had been in continuous, exclusive, and uninterrupted occupation of the suit land since 1995, a period exceeding 12 years. The evidence provided by the plaintiff was unchallenged, as the defendants did not file any substantive response or attend the hearing. The court relied on the principle that adverse possession requires such occupation for at least 12 years, as established in case law and statute. Consequently, the court held that the plaintiff had acquired title to the land by adverse possession, and the rights and interests of the registered proprietor were extinguished. The court ordered the transfer of the land title to the plaintiff.
Court Disposition
suit allowed
Orders
- It is hereby declared that Plaintiff has acquired title to the land Tharaka/Tunyai “A” 1011 by way of adverse possession.
- It is hereby declared that the Respondents rights and interests in the suit land are hereby extinguished by the Applicant’s adverse possession of the land.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ORIGINATING SUMMONS NO. 25 OF 2010
ENDELINA NTHENGU MATHENDU …………………………………PLAINTIFF
VERSUS
FRANCIS NTWIKI MUKUI………………………………………….DEFENDANT
JANET KANYUA RWANDA…………………………….……………DEFENDANT
J U D G M E N T
1. The initial suit was filed on 22. 02. 10 and was amended on 13. 07. 11 while another amendment was done on 29. 03. 12. The only aspect of the suit that was being amended in all these instances was the heading of the suit.
2. A notice of appointment was filed on 13. 01. 11 by P.E.M Manjau for defendant. No other document was ever filed for the defendant.
3. Defendant died on 04. 05. 13. He was substituted with Janet Kanyua Rwanda via the Court Order of 09. 07. 15.
4. Way back on 21:10:10, directions had been given for the Originating Summons, to be heard by way of affidavit evidence. Submissions were to be filed thereafter.
5. The evidence captured in the affidavit of the Plaintiff filed on 22. 02. 10 is that the suit land Tharaka/Tinyai “A” /1011 is registered in the name of the Respondent and is 10 acres,
6. Plaintiff has stated that he has been in occupation of the land continuously, exclusively and without uninterruption since 1995.
7. I find that the copy of the Green Card availed indicate that Francis Ntwiki Mukui was registered as the proprietor of the Suitland in 1995.
8. The current Respondent was duly served with a hearing notice of the suit but she failed to turn up .Plaintiff’s evidence therefore remains unchallenged.
9. In the case of Charles Muka Anyanga vs. Nyanweso Omunani (2004) eKLR, it was held that , “a claim of adverse possession succeeds or fails depending on whether there is evidence to show that applicant occupied the suit land adversely to the title of the owner continuously and exclusively for a period of not less than 12 years”.
10. I find that on a balance of probability, Plaintiff has proved this case and I proceed to give the following orders:-
1) It is hereby declared that Plaintiff has acquired title to the land Tharaka/Tunyai “A” 1011 by way of adverse possession.
2) It is hereby declared that the Respondents rights and interests in the suit land are hereby extinguished by the Applicant’s adverse possession of the land.
3) An order is hereby issued that the Land Title No. Tharaka/Tunyai “A” 1011 is to be transferred to the Plaintiff.
4) No orders as to costs.
DELIVERED, SIGNED AND DATED IN OPEN COURT AT MERU THIS 15TH DAY NOVEMBER, 2017 IN THE PRESENCE OF:-
CA: Janet/Haway
Kithinji H/B Mwenda Murango for Plaintiff
HON. L. N. MBUGUA
ELC JUDGE