[2002] KEHC 1077 (KLR)
The court found that the appellant had fraudulently caused the property to be transferred into his name and that his claim for adverse possession was not only without merit but also an abuse of the court process. The appellate court, upon independent evaluation of the evidence and the law, agreed with the trial...
Source-derived case information.
- Citation
- [2002] KEHC 1077 (KLR)
- Parties
- Appellant: Ephantus Mwai Mboi; Respondent: Francis Muiri Ngaacha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 53 of 1992
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Adverse Possession, Fraudulent Transfer, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ephantus Mwai Mboi
Appellant
Francis Muiri Ngaacha
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was entitled to claim adverse possession over the suit property.
- 2 Whether the transfer of the property to the appellant was fraudulent and amounted to misrepresentation.
- 3 Whether the learned Trial Magistrate applied the correct legal principles in determining the claim for adverse possession.
Ratio Decidendi
The court found that the appellant had fraudulently caused the property to be transferred into his name and that his claim for adverse possession was not only without merit but also an abuse of the court process. The appellate court, upon independent evaluation of the evidence and the law, agreed with the trial magistrate's decision and held that the appellant's actions disqualified him from benefiting from the doctrine of adverse possession. The appeal was dismissed for lack of merit, and the matter was referred back to the Senior Resident Magistrate to determine the modalities of time frame and compensation to meet the ends of justice.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
- The matter is referred to the Senior Resident Magistrate Kerugoya to work out the modalities of time frame and compensation or otherwise to meet the ends of justice.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO. 53 OF 1992
EPHANTUS MWAI MBOI ……………………………. APPELLANT
VERSUS
FRANCIS MUIRI NGAACHA ……………………….. RESPONDENT
J U D G E M E N T
This appeal arises from the Judgement of the learned Trial Magistrate in Kerugoya.
RMCC No. 211 of 1999 originally 179 of 1989, the appeal was submitted with grounds of appeal. He inter alia challenged the learned Trial Magistrate’s decision and contents that in respect of the application of adverse possession. The court reached a conclusion. I now perused the grounds of appeal and I have perused and fully considered the application submitted in support of this appeal as well as the submission in support of his appeal as well as the submissions made by the respondent. Having this in mind I have perused the entire record of the court below and the decision of the learned Trial Magistrate. This I have done as an appellate court of the first instance to dispute my even conclusion and a decision of a fresh date on the reality of the evidence submitted before the court below as well as to determine whether or not the learned Trial Magistrate applied the correct principles in respect of the issue raised having done so I have independently come to the same decision as the one arrived at by the learned Trial Magistrate.
The learned Trial Magistrate took into consideration all the evidence adduced fully. The appellant had caused to be transferred to his name fraudulently misrepresantation. His claim consequently for adverse possession is only aploy not only derived on Merit but is an attempt to hood wick work the process of law and is a flagrant abuse of the process of the court.
This appeal lacks merit it is consequently dismissed with costs. In the interest of justice it is endorsed that this matter be referred to the Senior Resident Magistrate Kerugoya to work out the modalities of time frame and compensation or otherwise to meet the ends of justice.
Order accordingly.
S. AMIN
JUDGE
30. 7.2002
Coram : D.K.S Aganyanya, J
Baiya for Mwangi for applicant
Kanyi for respondent
Matu – Court Clerk
ORDER
Delivered and signed by Hon. Justice D.K.S Aganyanya this
30th day of July, 2002.
SIGNED
D.K.S AGANYANYA
JUDGE