Hamisi Omar Juma, Mwamuye Dau Ngala & Mwalumbi Mwangata & 150 others v Amralbai J. Rajshi Shah & Pedro Jose Constancio Clodomiro [2014] KEHC 2868 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ENVIRONMENT AND LAND CASE NO. 631 (O.S)  OF 2011

IN THE MATTER OF PLOT NO. MN/1/399 - TITLE NO. CR. 7876

AND

IN THE MATTER OF: APPLICATION FOR DECLARATION THAT THE PLAINTIFFS HAVE OBTAINED OWNERSHIP OF THE ABOVE SAID PARCEL OF LAND BY WAY OF ADVERSE POSSESSION

AND

IN THE MATTER OF: SECTIONS 7,13,17,37 AND 38 OF THE LIMITATION OF

ACTIONS ACT (CAP 22) LAWS OF KENYA

AND

IN THE MATTER OF  ORDER 1 RULES 11,13 & 14

ORDER 37 RULES 7,8,11,13 AND 14 OF THE CIVIL PROCEDURE RULES, 2010AND

IN THEMATTER OF SECTION 59 AND 61 OF THE REGISTRATION OF TITLES ACT

CAP. 281 LAWS OF KENYA AND  ANY OTHER RELEVANT ENABLING

PROVISIONS  OF  THE LAWS OF KENYA

BETWEEN

1.   HAMISI OMAR JUMA

2.   MWAMUYE DAU NGALA

3.   MWALUMBI MWANGATA & 150 OTHERS...............PLAINTIFFS/APPLICANTS

- VERSUS -

1.   AMRALBAI J. RAJSHI SHAH

2.   PEDRO JOSE CONSTANCIO CLODOMIRO......DEFENDANTS/RESPONDENTS

JUDGEMENT

[1]  The 152 plaintiffs filed an originating summons on 8th December, 2011 under Section 7,13,17,37 and 38 of the Limitation of Actions Act Laws of Kenya Sec. 3A CPA Order 1 rule 11,13,14 and Order 37 rules 7,8,11,13 and 14 of the Civil Procedure Rules 2010 and Under Section 59 and 61 of the Registration of Titles Act Laws of Kenya for the following orders

1.    That Amralbai J. Rajshi Shah & Pedro Josee Constancio Clodomro    (the defendants) interest jointly and severally of Plot No. Cr. No.    7876/MN/1/3999    measuring 14. 36 Acres be extinguished.

2.    That this Honourable Court be pleased to order that the Applicants      herein be       registered as proprietors of Plot No. 7876 MN/I/399 in      the place of AMRALBAI   J. RAJSHI SAH and Pedro Jose Contancio       Clodomiro by reason of the fact that      the plaintiffs have become entitled to the said land by way of adverse      possession.

3.    That the Registrar of Titles Mombasa do delete entry for ownership      by the       defendants and issue Certificate of Title in the names of the     Plaintiffs: Hamisi       Omar Juma Mwamuye, Dau Ngala, Mwalumbi Mwangala holding in trust for    other plaintiffs.

4.   That the order referred to in paragraph 2,3, and 4 above be registered against      the Title to the Plot No. 7876/MN/I/3999 in terms of Section 38(2) of the   Limitation of Actions Act, Chapter 22, Laws of Kenya.

[2]  They further relied on the Affidavit of Hamisi Omar Juma who alleged

1.    That he is the 1st plaintiff herein and have been authorized to swear this    affidavit on his behalf and on behalf of others. (Annexed and marked HJ-I   is a copy of the authority to appear and act.

2.    That he is  familiar with the facts of this case and matters related to   this case.

3.    That at all material times to the suit herein, he and all other plaintiffs were and       still are squatters living in the  piece of land known as Plot No. MN/1/3999 Title       Number CR 7876 (hereinafter called the suit property).

4.    That the plaintiffs herein have been and are in physical occupation and       possession of the suit land Plot Number MN/1/399.  Annexed and marked HOJ-    2 are copies of the photos.

5.    That the plaintiffs have occupied the suit land and no one has ever come up to       claim ownership of the same.

6.    That the plaintiffs live on the suit land with their families.  They have lived in the suit land with their families.  They have lived in the  suit land and many    were born there.

Annexed to the originating summons was an authority to act and plead signed by 153 applicants.  The authority had also the identity card numbers of the said 153 applicants. It allowed the 1st,2nd and 3rd defendants to act on the applicants behalf.  The applicants also annexed a certificate of ownership of the suit property, a map of the general area and a Certificate of Postal Search as at 22nd September, 2011 showing that the property as a freehold comprising of 14. 36 Acres and registered inthe  names of Amralbai J. Rajshi Shah with ½ share and Pedro Joseph Constancio Clodomiro with ½ share.  Annexed to the Originating Summons were 14 photographs of houses complete and incomplete and in various stages of development on the premises.

[3]  The applicants applied to court on 24th May, 2012 and applied to serve the respondents through substituted service and the court (Kasango J) found the application merited and allowed the advertisement through the Daily Nation and Standard Newspapers and allowed the defendants to file their defence within 14 days of service of summons.  This matter was advertised in the  Standard on  22nd June, 2012 and the Nation Newspapers on 22nd June, 2012. This matter was listed for formal proof on 12th February, 2014.  One Hamisi Omari Juma ID.2268020 gave evidence and told the court that he is one of the applicants.  He said he was 70 years old and that he was born on the property and that he brought the case on behalf of himself and 152 others.  He said his father, mother and all relatives are born on the suit property.  He said he had no other land. He produced a copy of title of the respondents a search certificate and photographs of the houses he claimed  belonged to some of the applicants.  He finally produced a map of the area.  He stated that he has never seen other owners of the property  at all.  Mwalube Mwangata gave a similar story.  He said he lives at Utange in Plot 399. He said he was born in Kilifi but could not remember the year he went to the suit premises. He said that he has built a house there , has a wife and children. he said that he does not know the registered owners of the suit  and he further  said that his father and mother  died   and that he has buried them there. He prayed that the court do give title deeds to him and others. He stated that each person has a plot and that his plot is 50'X50'.

[4]  Mwamuye Dau Ngala also gave evidence as PW4. he said they had brought the suit on behalf of others.  That he is about 70 and has children and that lives on the suit property with his children.  He said he occupies 1½  acres and wants a title deed.

[5]  Having heard the case of the applicants, I am satisfied on a balance of probabilities  that the applicants  live on the  suit land.  That they served the defendants with the originating summons by substituted serve as ordered by the court.  That there has been no appearance by the respondents. I am also satisfied on a balance of probabilities that the applicants have been on the suit properties for over 12 years and have built their homes there.   That their occupation has not  been interrupted by the  respondent registered proprietors and the applicants  herein  have acquired title by adverse possession.  I order therefore that the suit land plot No. MN/1/339 Title No. CR. 7876 shall be registered in the  name of the applicants herein. I further do order that the Registrar of Titles Coast Registry  do register the 152 applicants as the proprietors herein as prayed in the  originating summons.

It is so ordered.

Dated and delivered in open court at Mombasa this 18th  day of September, 2014.

S. MUKUNYA

JUDGE

18. 9.2014

In the presence of:

Ngeno advocate for the applicant.