[2016] KEHC 6370 (KLR)
The court found that the plaintiff had been in exclusive and continuous possession of the suit property for more than twelve years, having purchased it in 1987 and taken possession immediately thereafter. The defendant, despite being served, did not contest the claim or present any evidence to the contrary. The sale...
Source-derived case information.
- Citation
- [2016] KEHC 6370 (KLR)
- Parties
- Plaintiff: George Mkuzi; Defendant: Maria Kavuna Dzimba
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 129 of 2014
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- Originating Summons allowed as prayed.
- Judges
- OA Angote
- Legal Topics
- Adverse Possession, Land Registration, Title Cancellation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Mkuzi
Plaintiff
Maria Kavuna Dzimba
Defendant
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to be declared the proprietor of Plot No. 632/Mgumo Patsa/Mazeras by way of adverse possession.
- 2 Whether the title deed issued to the defendant should be cancelled.
- 3 Whether the plaintiff should be registered as the sole proprietor of the suit property.
Ratio Decidendi
The court found that the plaintiff had been in exclusive and continuous possession of the suit property for more than twelve years, having purchased it in 1987 and taken possession immediately thereafter. The defendant, despite being served, did not contest the claim or present any evidence to the contrary. The sale agreement and oral testimony were unchallenged. The court held that the plaintiff had satisfied the requirements for adverse possession under Section 38 of the Limitation of Actions Act and was entitled to be declared the owner. Consequently, the title deed in the defendant's name was ordered cancelled, and the plaintiff was to be registered as the sole proprietor.
Court Disposition
Originating Summons allowed as prayed.
Orders
- The plaintiff, George Mkuzi, is declared entitled by way of adverse possession to Plot No. 632/Mgumo Patsa/Mazeras.
- The title deed issued to the defendant, Maria Kavuna Dzimba, in respect of the said plot is cancelled.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC NO 129 OF 2014(OS)
IN THE MATTER OF: SECTION 38 OF THE LIMITATION OF ACTIONS ACT AND ORDER 37 RULE 7 & 14 OF THE CIVIL PROCEDURE RULES (2010)
AND
IN THE MATTER OF: AN APPLICATION BY GEORGE MKUZI FOR ORDERS THAT HE BE DECLARED AND APPROPRIAELY REGISTERED AS THE SOLE PROPRIETOR OF ALL THAT PARCEL OF LAND KNOWN AS PLOT NO. 632 MGUMO PATSA/MAZERAS MEASURING 0. 71 HECTARES OR THEREABOUTS BY WAY OF ADVERSE POSSESSION.
BETWEEN
GEORGE MKUZI...............................................................PLAINTIFF
=VERSUS=
MARIA KAVUNA DZIMBA...........................................DEFENDANT
J U D G M E N T
1. In his Originating Summons dated 1st July, 2014, the Plaintiff is seeking for the following orders:
(i) THAT the Plaintiff herein GEORGE MKUZI do and is hereby declared to have been entitled by way of adverse possession of over 12 years to the parcel of land known as Plot No. 632/Mgumo Patsa/Mazeras measuring 0. 71 Hectares or thereabouts and registered under the Registered Land Act (Cap 300) (now repealed) and situated at Mazeras within Kilifi County.
(ii) That the Title Deed issued to the Defendant/Respondent herein the said Maria Kavuna Dzimba with respect to the said Plot No. 632/Mgumo Patsa/Mazeras be hereby cancelled.
(iii) That the Plaintiff herein George Mkuzi do be registered as the sole and absolute proprietor of the said parcel of land known as Plot No.632/Mgumo Patsa/Mazeras measuring 0. 71 Hectares or thereabouts and registered under the Registered Land act (Cap 300) (now repealed) Laws of Kenya and situated at Mazeras within Kilifi County.
(iv) That the costs of this application and proceedings herein be borne by the Defendant/Respondent .
2. The Defendant was served with the Originating Summon. She neither entered appearance nor filed a Replying Affidavit.
3. The matter proceeded for hearing by way of viva voce evidence on 2nd March, 2016.
4. The Plaintiff, PW1, informed the court that on 19th May 1987, he purchased the suit property from Rajah Kombo Rai, now deceased for Kshs.70,000.
5. It was the evidence of PW1 that after signing the agreement for sale, he took possession of the suit property and constructed permanent houses on it.
6. It was the evidence of PW1 that when he went to collect the title deed in the year 2011, he discovered that the suit property had been registered in favour of the Defendant.
7. PW1 informed the court that he should be declared and registered as the sole proprietor of the suit property.
8. PW2 stated that he witnessed the Plaintiff purchase the suit property from Rajab Kombo Rai.
9. According to PW2, the agreement of sale was prepared and signed in the office of the Chief of Rabai.
10. The agreement of sale between the Plaintiff and Rajab Kombo Rai dated 19th May, 1987 in respect to plot 632 was produced in evidence.
11. The evidence by the Plaintiff and PW2 has not been controverted by the Defendant.
12. On the basis of the Sale Agreement and the evidence of PW1 and PW2, I am satisfied that the Plaintiff has proved that he has been in the exclusive and continuous possession of the suit property for more than twelve (12) years.
13. For those reasons, I allow the Originating Summons dated 1st July 2014 as prayed.
Dated and delivered in Malindi this 11th day of March, 2016.
O. A. Angote
Judge