[2016] KEELC 1302 (KLR)
The court found that the plaintiffs, as members of the 458 Welfare Group, had been in continuous, exclusive, and peaceful occupation of the suit property for over 15 years. The defendant, despite being served, did not contest the claim. The evidence, including a certificate of postal search confirming the...
Source-derived case information.
- Citation
- [2016] KEELC 1302 (KLR)
- Parties
- Plaintiff: Mr James Ngowa; Plaintiff: Mr George Obudho; Plaintiff: Mariam Shariff; Defendant: Viable Properties Kenya Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Enviromental and Land Originating Summons 235 of 2015
- Procedural Posture
- Environment and Land Originating Summons / Judgment
- Outcome
- Originating Summons allowed; plaintiffs declared entitled to registration as proprietors by adverse possession.
- Judges
- OA Angote
- Legal Topics
- Adverse Possession, Title Registration, Limitation of Actions, Formal Proof, Quiet Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mr James Ngowa
Plaintiff
Mr George Obudho
Plaintiff
Mariam Shariff
Plaintiff
Viable Properties Kenya Limited
Defendant
Procedural Posture
Environment and Land Originating Summons / Judgment
Legal Issues
- 1 Is the defendant the registered proprietor of Plot No. 458 Section I/MN, [CR.16333]?
- 2 Have the plaintiffs been in possession of the property since 2000?
- 3 Has the plaintiffs' possession been quiet, continuous, and adverse to the defendant's title?
Ratio Decidendi
The court found that the plaintiffs, as members of the 458 Welfare Group, had been in continuous, exclusive, and peaceful occupation of the suit property for over 15 years. The defendant, despite being served, did not contest the claim. The evidence, including a certificate of postal search confirming the defendant's registered ownership and uncontroverted testimony of occupation since 2000, established that the plaintiffs' possession was adverse to the defendant's title. The court held that the plaintiffs had satisfied the requirements for adverse possession under section 38 of the Limitation of Actions Act and were entitled to be registered as absolute proprietors of the land.
Court Disposition
Originating Summons allowed; plaintiffs declared entitled to registration as proprietors by adverse possession.
Orders
- The Registrar of Titles, Coast Registration District, is directed to register 458 Welfare Group or its officials as the absolute proprietors of plot number 458/I/MN (CR. No. 16333) free from all other encumbrances.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
38 paragraphs
Ngowa & 2 others (Suing on behalf of members of 458 Welfare Group) v Viable Properties Kenya Limited (Enviromental and Land Originating Summons 235 of 2015) [2016] KEELC 1302 (KLR) (12 April 2016) (Judgment)
Mr. James Ngowa & 2 Others v Viable Properties Kenya Limited [2016] eKLR
Neutral citation: [2016] KEELC 1302 (KLR)
Republic of Kenya
In the Environment and Land Court at Mombasa
Enviromental and Land Originating Summons 235 of 2015
OA Angote, J
April 12, 2016
IN THE MATTER OF: A CLAIM FOR ADVERSE POSSESSION AND IN THE MATTER OF: PLOT NO. 458/I/M.N [CR.16333)
Between
Mr James Ngowa
1st Plaintiff
Mr George Obudho
2nd Plaintiff
Mariam Shariff
3rd Plaintiff
Suing on behalf of members of 458 Welfare Group
and
Viable Properties Kenya Limited
Respondent
Judgment
1. This suit was commenced by the Plaintiffs on behalf of “458” Welfare Group.
2. In the Originating Summons dated 15th September, 2015, the Plaintiffs are seeking for the determination of the following questions:-(a)Is the Defendant the registered proprietor of Plot No. 458 Section I/MN, [CR.16333]?(b)Have the Plaintiffs been in possession since 2000 of the property known as Plot Nos. 458 Section I/M.N.[16333]?(c)If so, has the said possession been quiet, continuous and adverse to the title of the Defendant?(d)If so, should the Registrar of Titles, Coast Registration District be ordered to have the Plaintiffs [458 Welfare Group] be registered as the absolute proprietor of the property known as Plot No. 458 Section I [CR.16333] free from all other encumbrances?(e)What orders as to costs?(d)Are there any further or other reliefs the Court may deem just to grant?
3. The suit is premised on the Affidavit of James Ngowa who deponed that the Plaintiffs stay at Bombolulu on plot number 458 Section 1/MN and that they have resided on the said land since 2000 to date.
4. According to the Plaintiffs, their families have been in continuous and uninterrupted occupation of the suit land for the last 15 years.
5. Although the Defendant was served with the Originating Summons by way of advertisement in the Standard Newspaper of 26th October, 2015 it neither entered appearance nor filed a Replying affidavit.
6. Indeed, the Plaintiffs went out of their way to serve the Defendant with a hearing notice of 31st March, 2016 by way of advertisement in the Standard Newspaper of 16th March, 2016.
7. This matter proceeded for formal proof on 31st March, 2016 when the 1st Plaintiff testified.
8. PW1 informed the court that he built his house on plot number 458/1/MN in the year 2000; that when he moved on the land, it was empty and that the other Plaintiffs also followed him on the land.
9. It was the evidence of PW1 that the entire property is now fully occupied and that their stay on the land has been continuous, uninterrupted, peaceful and that no one has ever asked them to vacate the land.
10. PW1 informed the court that in the year 2012, they came together and registered a welfare group for the members who were occupying the suit property; that the group has a membership of 43 people and that the title deed of the property should be registered in the name of the group.
11. PW1 produced in evidence the Certificate of Postal Search in respect to the suit property measuring 7. 25 acres.
12. According to the search, the Defendant is the registered proprietor of the suit property.
13. This suit was filed pursuant to the provisions of section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules.
14. Section 38 of the Limitation of Actions Act allows a person to apply to the High court for an order that he be registered as the proprietor of land in place of the person then registered where the person claims to have become entitled to such land by adverse possession.
15. The uncontroverted evidence before me shows that the members of “458 Welfare Group” have been occupying the suit property continuously, exclusively and peacefully for a period exceeding 12 years. The Plaintiffs have proved on a balance of probabilities that they are entitled to the suit property.
16. In the circumstances, I allow the Originating Summons dated 15th September 2015 in the following terms:(a)The Registrar of Titles, Coast Registration District be and is hereby directed to register “458 Welfare Group” or its officials as the absolute proprietors of plot number 458/I/MN (CR. No. 16333) free from all other encumbrances.(b)The Plaintiffs to being their own costs.
DATED AND SIGNED IN MALINDI THIS 12TH DAY OF APRIL, 2016. O. A. AngoteJudgeDATED, SIGNED AND DELIVERED IN MOMBASA THIS 15TH DAY OF APRIL, 2016. A. OmolloJudge