Mbigo Kadzo Tembo & another v Vincent Sabastian D'costa [2017] KEELC 3668 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO. 88 OF 2013 (OS)

IN THE MATTER OF: PLOT NO. KILIFI/MTWAPA/II

AND

IN THE MATTER OF: APPILICATION FOR DECLARATION THAT THE Applicant/PLAINTIFFS HAVE OBTAINED OWNERSHIP OF THE ABOVE SAID LAND BY WAY OF ADVERSE POSSESSION

BETWEEN

1. MBIGO KADZO TEMBO

2. ARNOLD KARISA MUHAMBI...................PLAINTIFFS/APPLICANTS

VERSUS

VINCENT SABASTIAN D'COSTA..............DEFENDANT/RESPONDENT

J U D G M E N T

1. In the Originating Summons dated 4th June, 2013, the Applicant is seeking for the determination of the following questions;

(a) Are the Plaintiffs/Applicants entitled to be declared as the proprietors of the parcel of land known as KILIFI/MTWAPA/11 which they have acquired by adverse possession after staying/residing on the parcel of land for an uninterrupted period/or in excess of twelve (12) years?

(b) Are the Plaintiffs/Applicants entitled to be registered as the owner of parcel of land Klifi/Mtwapa/11?

(c) Whether the Defendant's title or right to all that piece of land KILIFI/MTWAPA/II is extinguished and Defendant claiming the same is time barred by virtue of Section 17 of Limitations of Act.

2. The Originating Summons is supported by the Affidavit of the 1st Applicant who has deponed that for a period of of 58 years, his late father had houses on the suit land without the Defendant's permission; that him together with his family have erected houses on that suit land and that he has also planted coconut trees, cashew nuts trees, baobab mango trees, pawpaw, maize, beans among others.

3. According to the 1st Applicant, his mother and his aunt were buried on the suit land and that the Defendant has not taken any positive step to have them evicted from the land.

4. Although the Respondent was served with the Originating Summons by way of advertisement in the Daily Nation Newspaper of 12th December, 2014, he neither entered appearance nor filed a Replying Affidavit.

5. The matter proceeded for hearing on 23rd June, 2016. The 1st Applicant reiterated the depositions that are contained in his affidavit.

6. The Applicant’s advocate filed submissions which I have considered.

7. The evidence before me shows that the Plaintiffs have been in occupation of the suit land for more than 12 years continuously, peacefully, undisturbed and without the permission of the registered owner.

8. In the circumstances, the Applicants are entitled to be registered as the proprietors of the suit land by virtue of the doctrine of adverse possession.

9. For those reasons I allow the Applicants' Originating summons dated 4th June, 2013 in the following terms:-

(a) The Applicants be and are hereby declared to be the proprietors of parcel of land known as KILIFI/MTWAPA/II having acquired it by adverse possession.

(b) The Applicants to be registered as the owners of parcel of land known as KILIFI/MTWAPA/II forthwith.

Dated, signed and delivered in Malindi this 3rdday of February, 2017.

O. A. Angote

Judge