[2019] KEELC 2370 (KLR)
The court found that the Applicant had been in open, continuous, and peaceful possession of the suit land, Nzalae/Mutonguni/197, for over twelve years without interruption or challenge from the Respondent. The Respondent, despite being served, failed to contest the claim or provide evidence to the contrary. Applying...
Source-derived case information.
- Citation
- [2019] KEELC 2370 (KLR)
- Parties
- Applicant: Francesca Mumbee Kitundu; Respondent: Kithikii Mutambu Ngoma
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 4 of 2017
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Originating Summons allowed. Declaration of entitlement by adverse possession granted. Registration of Applicant as proprietor ordered. Each party to bear own costs.
- Judges
- OA Angote
- Legal Topics
- Adverse Possession, Limitation of Actions, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francesca Mumbee Kitundu
Applicant
Kithikii Mutambu Ngoma
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the Applicant is entitled to be declared owner of Nzalae/Mutonguni/197 by adverse possession.
- 2 Whether the Applicant has been in open, continuous, and uninterrupted possession of the suit land for over twelve years.
- 3 Whether the Respondent's title to the suit land has been extinguished under the Limitation of Actions Act.
Ratio Decidendi
The court found that the Applicant had been in open, continuous, and peaceful possession of the suit land, Nzalae/Mutonguni/197, for over twelve years without interruption or challenge from the Respondent. The Respondent, despite being served, failed to contest the claim or provide evidence to the contrary. Applying Sections 7 and 17 of the Limitation of Actions Act, the court held that the Respondent's title had been extinguished and the Applicant had acquired prescriptive rights by adverse possession. The Applicant was therefore entitled to be registered as the absolute proprietor of the land.
Court Disposition
Originating Summons allowed. Declaration of entitlement by adverse possession granted. Registration of Applicant as proprietor ordered. Each party to bear own costs.
Orders
- The Plaintiff is declared entitled by adverse possession for over twelve years to Nzalae/Mutonguni/197, now registered in the name of Kithikii Ngoma Mutambu.
- The Plaintiff shall be registered as the absolute proprietor in respect of title number Nzalae/Mutonguni/197.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. MISC. APPLN. NO. 4 OF 2017
FRANCESCA MUMBEE KITUNDU.........................................................APPLICANT
VERSUS
KITHIKII MUTAMBU NGOMA...........................................................RESPONDENT
JUDGMENT
1. In the Originating Summons dated 20th January, 2017, the Applicant is praying for the following orders:
a.That the Plaintiff herein be declared to be entitled by adverse possession for over twelve (12) years to all that parcel of land known as Nzalae/Mutonguni/197, now registered in the names of Kithikii Ngoma Mutambu.
b.That the Plaintiff be registered as absolute proprietor in respect of title number Nzalae/Mutonguni/197.
c.That the costs of these summons be awarded to the Plaintiff.
2. The Originating Summons is supported by the Affidavit of the Applicant who has deponed that the Respondent is the registered proprietor of land known as Nzalae/Mutonguni/197 (the suit property); that he lives and does farming on the suit land and that he has acquired prescriptive rights over the suit land.
3. The Affidavit of Service of the process-server shows that the Respondent was served with the Originating Summons on 8th February, 2017. However, the Respondent neither entered appearance nor filed a Replying Affidavit. The Originating Summons proceeded for hearing as an undefended cause of action.
4. The Applicant relied on his Affidavit when he appeared before the court to give viva voce evidence. I have summarized the contents of his Affidavit above.
5. In his submissions, the Applicant’s advocate submitted that the Applicant has demonstrated that he has been in possession of the suit land since 1996 to date; that as at the date of filing the suit, she had been in possession of the land for twenty one (21) years and that the Applicant’s possession was open and continuous.
6. Counsel submitted that under Section 7 of the Limitation of Actions Act, the Respondent is barred from recovering the suit land from the Applicant; that the Respondent’s title has been extinguished and that the Applicant should be declared as the owner of the suit land.
7. The Respondent has not rebutted the Applicant’s assertion that the Applicant has been in possession and occupation of the suit land since November, 1996. Considering that the Applicant has lived on the suit land continuously, peacefully and uninterrupted for a period of more than twelve (12) years, I find and hold that the Applicant has proved his case on a balance of probabilities.
8. For those reasons, I allow the Applicant’s Originating Summons dated 20th January, 2017 as follows:
a.That the Plaintiff herein be and is hereby declared to be entitled by adverse possession for over twelve (12) years to all that parcel of land known as Nzalae/Mutonguni/197, now registered in the name of Kithikii Ngoma Mutambu.
b.That the Plaintiff be registered as the absolute proprietor in respect of title number Nzalae/Mutonguni/197.
c.Each party to bear his/her own costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 12TH DAY OF JULY, 2019.
O.A. ANGOTE
JUDGE