[2017] KEELC 3668 (KLR)
The court found that the Applicants and their predecessors had occupied the suit land for more than twelve years continuously, peacefully, and without the permission of the registered owner. The Defendant did not contest the claim or take any steps to evict the Applicants. The evidence established that the...
Source-derived case information.
- Citation
- [2017] KEELC 3668 (KLR)
- Parties
- Applicant: Mbigo Kadzo Tembo; Applicant: Arnold Karisa Muhambi; Respondent: Vincent Sabastian D'Costa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 88 of 2013
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- originating summons allowed
- Judges
- OA Angote
- Legal Topics
- Adverse Possession, Land Ownership, Limitation of Actions
- 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
Mbigo Kadzo Tembo
Applicant
Arnold Karisa Muhambi
Applicant
Vincent Sabastian D'Costa
Respondent
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Are the Plaintiffs/Applicants entitled to be declared as proprietors of parcel KILIFI/MTWAPA/II by adverse possession after uninterrupted occupation for over twelve years?
- 2 Are the Plaintiffs/Applicants entitled to be registered as owners of parcel KILIFI/MTWAPA/II?
- 3 Is the Defendant's title to KILIFI/MTWAPA/II extinguished and is any claim by him time-barred under Section 17 of the Limitation of Actions Act?
Ratio Decidendi
The court found that the Applicants and their predecessors had occupied the suit land for more than twelve years continuously, peacefully, and without the permission of the registered owner. The Defendant did not contest the claim or take any steps to evict the Applicants. The evidence established that the Applicants' possession was open, exclusive, and adverse to the interests of the registered owner. By operation of Sections 7, 17, and 38 of the Limitation of Actions Act, the Defendant's title was extinguished, and the Applicants were entitled to be declared proprietors and to be registered as owners of the land by virtue of adverse possession.
Court Disposition
originating summons allowed
Orders
- The Applicants are declared proprietors of parcel of land known as KILIFI/MTWAPA/II by adverse possession.
- The Applicants to be registered as owners of parcel of land known as KILIFI/MTWAPA/II forthwith.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 88 OF 2013 (OS)
IN THE MATTER OF: PLOT NO. KILIFI/MTWAPA/II
AND
IN THE MATTER OF: APPILICATION FOR DECLARATION THAT THE Applicant/PLAINTIFFS HAVE OBTAINED OWNERSHIP OF THE ABOVE SAID LAND BY WAY OF ADVERSE POSSESSION
BETWEEN
1. MBIGO KADZO TEMBO
2. ARNOLD KARISA MUHAMBI...................PLAINTIFFS/APPLICANTS
VERSUS
VINCENT SABASTIAN D'COSTA..............DEFENDANT/RESPONDENT
J U D G M E N T
1. In the Originating Summons dated 4th June, 2013, the Applicant is seeking for the determination of the following questions;
(a) Are the Plaintiffs/Applicants entitled to be declared as the proprietors of the parcel of land known as KILIFI/MTWAPA/11 which they have acquired by adverse possession after staying/residing on the parcel of land for an uninterrupted period/or in excess of twelve (12) years?
(b) Are the Plaintiffs/Applicants entitled to be registered as the owner of parcel of land Klifi/Mtwapa/11?
(c) Whether the Defendant's title or right to all that piece of land KILIFI/MTWAPA/II is extinguished and Defendant claiming the same is time barred by virtue of Section 17 of Limitations of Act.
2. The Originating Summons is supported by the Affidavit of the 1st Applicant who has deponed that for a period of of 58 years, his late father had houses on the suit land without the Defendant's permission; that him together with his family have erected houses on that suit land and that he has also planted coconut trees, cashew nuts trees, baobab mango trees, pawpaw, maize, beans among others.
3. According to the 1st Applicant, his mother and his aunt were buried on the suit land and that the Defendant has not taken any positive step to have them evicted from the land.
4. Although the Respondent was served with the Originating Summons by way of advertisement in the Daily Nation Newspaper of 12th December, 2014, he neither entered appearance nor filed a Replying Affidavit.
5. The matter proceeded for hearing on 23rd June, 2016. The 1st Applicant reiterated the depositions that are contained in his affidavit.
6. The Applicant’s advocate filed submissions which I have considered.
7. The evidence before me shows that the Plaintiffs have been in occupation of the suit land for more than 12 years continuously, peacefully, undisturbed and without the permission of the registered owner.
8. In the circumstances, the Applicants are entitled to be registered as the proprietors of the suit land by virtue of the doctrine of adverse possession.
9. For those reasons I allow the Applicants' Originating summons dated 4th June, 2013 in the following terms:-
(a) The Applicants be and are hereby declared to be the proprietors of parcel of land known as KILIFI/MTWAPA/II having acquired it by adverse possession.
(b) The Applicants to be registered as the owners of parcel of land known as KILIFI/MTWAPA/II forthwith.
(c) Each party to bear his own costs.
Dated, signed and delivered in Malindi this 3rdday of February, 2017.
O. A. Angote
Judge