[2004] KEHC 270 (KLR)
The court found that the plaintiff had been in exclusive, continuous, and uninterrupted occupation of the suit land for over 12 years. The defendant, despite being served by advertisement, did not contest the application. The court held that the plaintiff had satisfied the legal requirements for adverse possession...
Source-derived case information.
- Citation
- [2004] KEHC 270 (KLR)
- Parties
- Plaintiff: Jefwa Nyale Kithi; Defendant: Sugrabai Mulla Mohamedali
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 151of 20 of 2003
- Procedural Posture
- Originating Summons / Ruling
- Outcome
- Application granted. Plaintiff to be registered as owner by adverse possession.
- Legal Topics
- Adverse Possession, Limitation of Actions, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jefwa Nyale Kithi
Plaintiff
Sugrabai Mulla Mohamedali
Defendant
Procedural Posture
Originating Summons / Ruling
Legal Issues
- 1 Whether the plaintiff has acquired title to the suit land by adverse possession.
- 2 Whether the plaintiff is entitled to be registered as the owner of Subdivision No. 121 Section III M.N. (C.R. No. 4322).
Ratio Decidendi
The court found that the plaintiff had been in exclusive, continuous, and uninterrupted occupation of the suit land for over 12 years. The defendant, despite being served by advertisement, did not contest the application. The court held that the plaintiff had satisfied the legal requirements for adverse possession under Section 38 of the Limitation of Actions Act. Consequently, the plaintiff was entitled to be registered as the owner of the land in place of the defendant.
Court Disposition
Application granted. Plaintiff to be registered as owner by adverse possession.
Orders
- The plaintiff, Jefwa Nyale Kithi, shall be registered as the owner of Subdivision No. 121 Section III M.N. (C.R. No. 4322) in place of the defendant, Sugrabai Mulla Mohamedali.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 151of 2003
JEFWA NYALE KITHI ……………………………….....……..…….…. PLAINTIFF
- Versus -
SUGRABAI MULLA MOHAMEDALI …………………...……….… DEFENDANT
R U L I N G
This is an Originating Summons brought under Section 38 of the Law of Limitation of Actions Act, Chapter 22 of the Laws of Kenya, Order 36 Rule 3D of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The Applicant, Jefwa Nyale Kithi, seeks an order of this court to be registered as the owner of ALL THAT parcel of land known as Subdivision No. 121 Section III M.N. (C.R. No. 4322) in place of the defendant, SUGRABAI MULLA MOHAMEDALI for reasons that he has become entitled to the ownership of the said land by Adverse Possession.
In the supporting affidavit the Applicant has deposed that sometimes in 1974 he saw the said piece of land which was very bushy and unoccupied. He moved and settled thereon and has since then remained in exclusive, continuous and uninterrupted occupation of the same. He further states that he has built thereon a home where he lives with his family and has generally developed the piece of land.
After sometime, the Applicant further states, he carried out a search of the title at the Lands Office and found out that the land is registered in the name of one Sugrabai Mulla Mohamedali whom and whose whereabouts he does not know. In the circumstances he depones that he has acquired title to the land by adverse possession and seeks to be registered as the owner of it.
Not knowing the whereabouts of the defendant the plaintiff/Applicant sought and obtained this courts leave to serve the application by advertisement in the newspaper. He did that on the 1st October 2003 but the defendant has not entered appearance or filed any pleadings in opposition to the application.
Having considered the application as a whole and the submissions made by counsel for the plaintiff/Applicant, I am satisfied that the plaintiff/Applicant has been in exclusive, continuous and uninterrupted occupation of the said piece of land for a period of over 12 years and has therefore acquired title to it by adverse possession. Consequently I order that the plaintiff/Applicant, JEFWA NYALE KITHI, be registered as the owner of ALL THAT piece of land situate in Coast Province of the Republic of Kenya and known as Subdivision No. 121 Section III M.N. and registered in the Land Titles Registry at Mombasa as Number C.R. 4322/1 in place of the defendant, SUGRABAI MULLA MOHAMEDALI.
DATED and delivered this 6th day of December 2004.
D.K. Maraga
Ag. JUDGE