The plaintiffs, Luther Kasholo Lamech, Lamech Ali Kasholo, Abdalla Rashid Mwakone, Kazungu Charo Said, Gilgus Mvuko Mbaji, Juma Kalume Charo, Justin Ruwa Kilinga, Mary Muhonja Emoja, Edeth Umazi Wale, Betty Justine Ruwa and Mariam Joseph Nguma hereinafter refered to as plaintiffs have come to this court for a declaration that the plaintiffs are entitled to be declared as the proprietors of 2.72 acres of land on plot no. MN/1/363, CR. NO. 1856 which they have acquired by way of adverse possession after staying and/or occupying and or residing on the plot for over 12 years.
Moreover, that the Plaintiffs are entitled to be registered as the owners of plot No. MN/1/363, CR. NO. 1856 and be issued with a certificate of Title and/or a provisional Certificate of Title. Lastly, that the Plaintiffs are entitled to the costs of this suit.
In the supporting affidavit Luther Kasholo Lamech on his behalf and on behalf of the plaintiff state that the Defendant is the registered owner of the suit premises herein, being Land Parcel No. Mn/1/363, Cr No. 1856. The Plaintiffs/Applicants herein have lived and/or occupied and/or resided on the suit premises for over 12 years. On his part, he entered the suit premises in the year 1999 together with his wife, the 9th Plaintiff and have been residing on the said parcel of land up to now, and that, together with the other Plaintiffs/Applicants, have never been threatened with eviction at any given time.
The 2nd Plaintiff herein, who is his son also entered the suit premises in the year 1999 when he was very young and settled on the suit land together with the 1st plaintiff. The 3rd plaintiff entered the suit premises in the year 1986 while the 4th Plaintiff herein entered the suit land in the year 1999 together with the 5th Plaintiff.
The 6th plaintiff entered the suit premises in the year 1998 together with his, wife, the 11th Plaintiff/Applicant herein while the 9th and 10th Plaintiff herein entered the suit land in the year 2000. The Plaintiffs/Applicants herein have been residing on the suit premises for over 12 years, since none entered the suit land after the year 2000 and further that their entry onto the suit premises was peaceful.
Their entry and/or occupation on the suit premises was without the authority and/or consent and/or permission of the Defendant/Respondent herein or her predecessor(s) in title and that they have all occupied and/or possessed and/or resided and/or lived on the suit premises peacefully and/or openly and/or uninterruptedly and/or continuously and/or exclusively and/or adversely to the Title of the registered owner.
They have also been cultivating and/or rearing animals on the suit premises for the number of years and have been staying thereon, planting crops and other plants for their subsistence and as a means of eking out a living. That since their entry onto the suit premises was without anybody's permission and/or authority and/or consent and further that their entry and/or occupation and/or stay on the suit premises has been peacefully and/or openly and/or continuously and/or uninterruptedly and/or exclusively and above all adverse to the title of the registered owner, they are entitled to be registered as the owners of the suit premises by way of Adverse Possession.
The Defendant has no single structure or even a tree on the suit premises and has never occupied the same at any given time, meaning that they have dispossessed him of his land, while on the other hand, they have discontinued his possession of the land, and rightly so as he does not own anything on the suit premises.
Having stayed and/or occupied and/or resided and/or lived on suit premises for well over 12 years and having met or fulfilled all the requirements of Adverse Possession claim, they are entitled under the Provisions of Section 38 the Limitation of Actions Act to seek for Orders of Adverse possession against Defendant/Respondent herein.
The plaintiffs state that prior to the institution and/or commencement of this suit and in realization of their adversary rights over the suit premises, they filed a suit in the year 2014 in respect of the suit premises, seeking for similar orders of adverse possession, being ELC No. 47 of 2014(OS), Luther Kosholo Lameck & others =VS= Rashid Warshow (Mombasa), which said suit was heard and determined in their favour on 28th June, 2017 and upon delivery of the said judgement, they applied to the Lands office for issuance of a provincial certificate, which said certificate of title was issued on 29th September, 2017. On 18th January, 2019, the Defendant/Respondent filed an application dated 18th January, 2019, seeking to review and/or set aside and/or discharge and/or vary the aforementioned judgement on the ground that the registered owner of the suit premises, was deceased and further sought to substitute the deceased and have the suit heard with her participation. That upon hearing of the said application, ruling was delivered on 26th February, 2020, striking out the entire suit for having been commenced against a dead person.
The statement of the plaintiff reiterates the supporting affidavit.
The doctrine of adverse possession has been summarized by Makhandia, JA in Mtana Lewa vs Kahindi Ngala Mwagandi [2015] eKLR as follows:-
“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force nor stealth nor under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act, which is in these terms:-“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”See also sections 9, 13, 17, 37 and 38 of the Limitation of Actions Act (LAA) which make further provisions on the mechanics of the doctrine.
18.In the case of Mate Gitabi vs Jane Kabubu Muga Alias Jane Kaburu Muga & 3 Others [2017] eKLR, this Court stated as follows:“For one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is without secrecy, without force, and without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin maxim nec vi, nec clam, nec precario. See also ... Kasuve vs Mwaani Investments Limited & 4 Others [2004] 1KLR where this Court stated as follows:“In order to be entitled to land by adverse possession, the claimant must prove that she has been in exclusive possession of land openly and as of right and without interruption for 12 years, either after dispossessing the owner or by discontinuation of possession by the owner on his own volition.’"
I have considered the Originating Summons, Supporting Affidavit and do find that the plaintiffs have proved that they have been in exclusive, actual, peaceful, continuous, non-permissive possession of the suit property for more than 12 years and therefore are entitled to the prayers sought. The plaintiffs/applicants are hereby declared as the proprietors of 2.72 acres of land on plot no. MN/1/363, CR. NO. 1856 which they have acquired by way of adverse possession after staying and/or occupying and or residing on the plot for over 12 years.
I do order that the Plaintiffs/Applicants to be registered as the owners of plot No. MN/1/363, CR. NO. 1856 and be issued with a certificate of Title and/or a provisional Certificate of Title. Costs to the plaintiff.
Moreover, that the Plaintiffs are entitled to be registered as the owners of plot No. MN/1/363, CR. NO. 1856 and be issued with a certificate of Title and/or a provisional Certificate of Title. Lastly, that the Plaintiffs are entitled to the costs of this suit.
In the supporting affidavit Luther Kasholo Lamech on his behalf and on behalf of the plaintiff state that the Defendant is the registered owner of the suit premises herein, being Land Parcel No. Mn/1/363, Cr No. 1856. The Plaintiffs/Applicants herein have lived and/or occupied and/or resided on the suit premises for over 12 years. On his part, he entered the suit premises in the year 1999 together with his wife, the 9th Plaintiff and have been residing on the said parcel of land up to now, and that, together with the other Plaintiffs/Applicants, have never been threatened with eviction at any given time.
The 2nd Plaintiff herein, who is his son also entered the suit premises in the year 1999 when he was very young and settled on the suit land together with the 1st plaintiff. The 3rd plaintiff entered the suit premises in the year 1986 while the 4th Plaintiff herein entered the suit land in the year 1999 together with the 5th Plaintiff.
The 6th plaintiff entered the suit premises in the year 1998 together with his, wife, the 11th Plaintiff/Applicant herein while the 9th and 10th Plaintiff herein entered the suit land in the year 2000. The Plaintiffs/Applicants herein have been residing on the suit premises for over 12 years, since none entered the suit land after the year 2000 and further that their entry onto the suit premises was peaceful.
Their entry and/or occupation on the suit premises was without the authority and/or consent and/or permission of the Defendant/Respondent herein or her predecessor(s) in title and that they have all occupied and/or possessed and/or resided and/or lived on the suit premises peacefully and/or openly and/or uninterruptedly and/or continuously and/or exclusively and/or adversely to the Title of the registered owner.
They have also been cultivating and/or rearing animals on the suit premises for the number of years and have been staying thereon, planting crops and other plants for their subsistence and as a means of eking out a living. That since their entry onto the suit premises was without anybody's permission and/or authority and/or consent and further that their entry and/or occupation and/or stay on the suit premises has been peacefully and/or openly and/or continuously and/or uninterruptedly and/or exclusively and above all adverse to the title of the registered owner, they are entitled to be registered as the owners of the suit premises by way of Adverse Possession.
The Defendant has no single structure or even a tree on the suit premises and has never occupied the same at any given time, meaning that they have dispossessed him of his land, while on the other hand, they have discontinued his possession of the land, and rightly so as he does not own anything on the suit premises.
Having stayed and/or occupied and/or resided and/or lived on suit premises for well over 12 years and having met or fulfilled all the requirements of Adverse Possession claim, they are entitled under the Provisions of Section 38 the Limitation of Actions Act to seek for Orders of Adverse possession against Defendant/Respondent herein.
The plaintiffs state that prior to the institution and/or commencement of this suit and in realization of their adversary rights over the suit premises, they filed a suit in the year 2014 in respect of the suit premises, seeking for similar orders of adverse possession, being ELC No. 47 of 2014(OS), Luther Kosholo Lameck & others =VS= Rashid Warshow (Mombasa), which said suit was heard and determined in their favour on 28th June, 2017 and upon delivery of the said judgement, they applied to the Lands office for issuance of a provincial certificate, which said certificate of title was issued on 29th September, 2017. On 18th January, 2019, the Defendant/Respondent filed an application dated 18th January, 2019, seeking to review and/or set aside and/or discharge and/or vary the aforementioned judgement on the ground that the registered owner of the suit premises, was deceased and further sought to substitute the deceased and have the suit heard with her participation. That upon hearing of the said application, ruling was delivered on 26th February, 2020, striking out the entire suit for having been commenced against a dead person.
The statement of the plaintiff reiterates the supporting affidavit.
The doctrine of adverse possession has been summarized by Makhandia, JA in Mtana Lewa vs Kahindi Ngala Mwagandi [2015] eKLR as follows:-
“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force nor stealth nor under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act, which is in these terms:-“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”See also sections 9, 13, 17, 37 and 38 of the Limitation of Actions Act (LAA) which make further provisions on the mechanics of the doctrine.
18.In the case of Mate Gitabi vs Jane Kabubu Muga Alias Jane Kaburu Muga & 3 Others [2017] eKLR, this Court stated as follows:“For one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is without secrecy, without force, and without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin maxim nec vi, nec clam, nec precario. See also ... Kasuve vs Mwaani Investments Limited & 4 Others [2004] 1KLR where this Court stated as follows:“In order to be entitled to land by adverse possession, the claimant must prove that she has been in exclusive possession of land openly and as of right and without interruption for 12 years, either after dispossessing the owner or by discontinuation of possession by the owner on his own volition.’"
I have considered the Originating Summons, Supporting Affidavit and do find that the plaintiffs have proved that they have been in exclusive, actual, peaceful, continuous, non-permissive possession of the suit property for more than 12 years and therefore are entitled to the prayers sought. The plaintiffs/applicants are hereby declared as the proprietors of 2.72 acres of land on plot no. MN/1/363, CR. NO. 1856 which they have acquired by way of adverse possession after staying and/or occupying and or residing on the plot for over 12 years.
I do order that the Plaintiffs/Applicants to be registered as the owners of plot No. MN/1/363, CR. NO. 1856 and be issued with a certificate of Title and/or a provisional Certificate of Title. Costs to the plaintiff.