[2017] KEELC 2987 (KLR)
The court found that the plaintiffs had been in continuous and uninterrupted possession of the suit land for over 12 years without the consent of the registered owners, as evidenced by the affidavit and supporting documents. The defendants, despite being served by advertisement, did not contest the suit or attempt...
Source-derived case information.
- Citation
- [2017] KEELC 2987 (KLR)
- Parties
- Plaintiff: Silas Shida Kalu & 21 Others; Defendant: William Ernest Randale; Defendant: Susan Elizabeth Randale
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 52 of 2014
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- Judgment for the plaintiffs.
- Legal Topics
- Adverse Possession, Title Registration, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Shida Kalu & 21 Others
Plaintiff
William Ernest Randale
Defendant
Susan Elizabeth Randale
Defendant
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the plaintiffs have acquired title to the suit land by adverse possession.
- 2 Whether the plaintiffs have occupied the land for over 12 years without the defendants' consent.
- 3 Whether the plaintiffs' occupation has dispossessed the defendants of the suit land.
Ratio Decidendi
The court found that the plaintiffs had been in continuous and uninterrupted possession of the suit land for over 12 years without the consent of the registered owners, as evidenced by the affidavit and supporting documents. The defendants, despite being served by advertisement, did not contest the suit or attempt to recover the land. The court held that the plaintiffs had satisfied the legal requirements for adverse possession and were entitled to be registered as joint owners of the property. The suit proceeded undefended, and the plaintiffs proved their case on a balance of probabilities.
Court Disposition
Judgment for the plaintiffs.
Orders
- The plaintiffs are to be registered as joint owners of plot No 32/11/MN by way of adverse possession.
- The plaintiffs shall bear the costs of the suit.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC CASE NO. 52 OF 2014 (OS)
SILAS SHIDA KALU & 21 OTHERS…………………..…………PLAINTIFFS
-VERSUS-
WILLIAM ERNEST RANDALE
SUSAN ELIZABETH RANDALE………………….……………DEFENDANTS
JUDGEMENT
1. The plaintiffs sued the two defendants for a claim of adverse possession over property title No MSA 32/11/MN measuring 4. 25 Acres. They have annexed a certificate of postal search as at 6th December 2013 showing the land is in the name of the two defendants as tenants in common.
2. The defendants were served by placing an advertisement on the daily nation newspaper of 17th March 2016 whose cutting was filed in Court on 7th June 2016 together with the affidavit of service of Agnes SidiKazungu. The defendants did not file an appearance within the stipulated period of 21 days from the date of the advertisement.
3. The plaintiffs in proving their case relied on the affidavit of TingaKaluJefa the second plaintiff. In this affidavit, Mr Jefa annexed a list of the occupants of the land stating the dates each entered the land. The last entrant was Amina ShidaKalu who signed that she entered the land in 1994. According to the deponent, all the plaintiffs have been on the land for over 12 years without the permission of the defendants. The plaintiffs also annexed photographs of their houses which he deposes are on this land and there has been no contrary evidence adduced.
4. Any party who comes to Court for an order of adverse possession only need satisfy the Court that:
i) They have been on the land for over 12 years uninterrupted without the consent of the land owner.
ii) That their occupation has dispossessed the land owner of the intention for which the land owner would have used the land.
5. In this case,it is clear the defendants have been dispossessed of their land and they have not made any attempts to recover the land from the plaintiffs. I am therefore satisfied that the plaintiffs have proved on a balance of probabilities as is required in law. Consequently I enter judgement in their favour in terms of prayer 1 & 2 of the Originating Summons by issuing an order that they be registered as joint owners of the suit land plot No 32/11/MN having acquired it by way of adverse possession. They shall bear the cost of their suit as the suit proceeded undefended.
Dated, signed & delivered at Mombasa this 28th day of April 2017.
A.OMOLLO
JUDGE