[2007] KEHC 3608 (KLR)
The court found that the plaintiff had been in actual, peaceful, and uninterrupted possession of the suit property LR 36/111/3111 since 1974, a period exceeding the statutory 12 years required for adverse possession. The defendant, though the registered owner, had not been seen or heard from during this time and...
Source-derived case information.
- Citation
- [2007] KEHC 3608 (KLR)
- Parties
- Plaintiff: Mohamuud Abdullahi Ahmed; Defendant: Mohamed Afzal
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 607 of 2004
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- Plaintiff granted title to suit land by adverse possession; costs awarded to plaintiff.
- Legal Topics
- Adverse Possession, Limitation of Actions, Title Extinguishment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamuud Abdullahi Ahmed
Plaintiff
Mohamed Afzal
Defendant
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the plaintiff has acquired title to LR 36/111/3111 by adverse possession under section 38 of the Limitation of Actions Act.
- 2 Whether the plaintiff's occupation of the suit property was peaceful, open, and uninterrupted for over 12 years.
Ratio Decidendi
The court found that the plaintiff had been in actual, peaceful, and uninterrupted possession of the suit property LR 36/111/3111 since 1974, a period exceeding the statutory 12 years required for adverse possession. The defendant, though the registered owner, had not been seen or heard from during this time and failed to respond to substituted service. The court was satisfied that the plaintiff's possession met all legal requirements for adverse possession under section 38 of the Limitation of Actions Act. Consequently, the plaintiff's right to the property was established, and the defendant's title was extinguished under section 17 of the same Act. Costs were awarded to the plaintiff.
Court Disposition
Plaintiff granted title to suit land by adverse possession; costs awarded to plaintiff.
Orders
- Plaintiff is declared to have acquired title to LR 36/111/3111 by adverse possession.
- The defendant's title to the suit property is extinguished under section 17 of the Limitation of Actions Act.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 607 of 2004 (OS)
1. Land and Environmental Law Division
2. Subject of main
2. 1. Land LR 36/111/3111 Nbi
2. 2. Adverse Possession
3. Originating Summons
3. 1. Filed 10 June 2004 dated 29 April 2004
3. 2. Alternative service
Kubo J (27 October 2005)
4. Hearing – affidavit evidence (Order IXb r 3 (a) Civil Procedure Rules
4. 1. Plaintiff in possession of suit since September 1974
5. Judgment – Adverse Possession granted
6. Case law - Nil
7. Advocates
1. M.A. Khan for M.A. Khan & Co. Advocates for the plaintiff
2. Mohamed Afzal the defendant
MOHAMUUD ABDULAHI AHMED ……………………….. PLAINTIFF
VERSUS
MOHAMED AFZAL ……………………………..................DEFENDANT
JUDGMENT
I: PROCEDURE
1. The plaintiff herein Mohauud Abdullahi Ahmed; filed this Originating Summons under section 38 of the Limitation of Actions Act Cap.22 Laws of Kenya
ich he seeks Adverse Possession for a property that he has been in possession for over 12 years.
2. The said property situated in Eastleigh Area of Nairobi being LR 36/111/3111 Vol.39 folio 313 file 12287, 50 feet by 100 feet is registered in the name of Mohamed Afzal (the defendant herein).
3. The whereabouts of Mohamed Afzal was unknown. The plaintiff applied for substitutive service. This was granted to him (Kubo J
27 October 2005). By an advertisement in the Nation Newspaper of
18 January 2006 the said defendant having been duly notified through the press did not enter appearance nor file his defence.
4. This hearing was commenced under order IXb r 3(a) Civil Procedure Rules namely that the plaintiff being duly served (by way of substantive service) was absent during the trial.
II: TRIAL
5. The trial proceeds under affidavit evidence. It is actually states the plaintiff entered into possession of the suit land in 1974. He had in the years since never heard or seen the defendant.
6. From the document annexed therein the defendant had purchased the piece of property on 16 February 1967 and is therefore the owner of the said a property.
III: FINDING
7. I am satisfied that the plaintiff has been on the property for over 12 years enjoying peaceful occupation and uninterrupted occupation.
8. I hold that the said plaintiff has acquired Adverse Possession and would accordingly have title to the whole share of the suit land which has now been extinguished under section 17 of the Limitation of Actions Act Cap.22 Laws of Kenya.
9. I award costs to the plaintiff.
Dated this 20th Day of June 2007.
M.A. ANG’AWA
JUDGE
M.A. Khan for M.A. Khan & Co. Advocates for the plaintiff
No appearance for the advocate for the defendant