Keith Ngala Kazungu v Mwanaisha Ali

situated in Mombasa County, in place of the Respondent MWANAISHA ALI by reason of the fact that the Applicant has become entitled to the said parcel by adverse possession; 3) That the Registrar of Titles, Mombasa do issue Certificates of Title for the parcel of land known and/or registered as Plot No. MN/I/2894 situated in Mombasa County in the names of KEITH NGALA KAZUNGU without gazettement; 4) That the Order referred to in paragraphs 1, 2 and 3 above be registered against the Title to property known and/or registered as Plot No. MN/I/2894 situated in Mombasa County, in terms of Section 38(2) of the Limitation (of) Actions Act, Chapter 22, Laws of Kenya; and 5) That the costs of this Originating Summons be provided for. 2. The Originating Summons is supported by an Affidavit sworn by the Applicant and is premised on the grounds that: i) The Applicant has been in uninterrupted exclusive physical possession of all the parcel of RULING land known as Page 2 of 7 MN/I/2894 situated in MSA. ELC(OS). 341 OF 2017

page 2 of 7

Mombasa County for a continuous period of well over 12 years; ii) The Respondent’s rights and/or interests in the said parcel of land have been extinguished; and iii) It is fair and just that the Applicant is registered as the owner of the said parcel of land. 3. Following an application made herein, the Respondent was on 18th October 2022 served with Summons by way of substituted service through the Standard Newspaper. The Respondent neither entered appearance nor did she file any response and the suit proceeded as undefended. Analysis and Determination 4. I have carefully perused and considered the pleadings filed herein, the sole testimony of the Applicant as well as the evidence adduced at the trial. I have similarly perused and RULING Page 3 of 7 MSA. ELC(OS). 341 OF 2017

page 3 of 7

considered the submissions placed before the Court by the Learned Counsel representing the Applicant. 5. By his suit as filed herein, the Applicant seeks to be declared to have acquired all that parcel of land known as MN/I/2894 situated in Mombasa County under the doctrine of adverse possession. It is the Applicant’s case that together with his family, they have been in uninterrupted and exclusive physical possession of the said parcel of land for a period exceeding twelve (12) years and that he should hence be declared as the registered owner thereof. 6. A claim for adverse possession is brought on the strength of Section 38(1) of the Limitation of Actions Act. The said Section provides thus: “38. Registration of title to land or easement under the Act. (1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in Section 37, or land comprised in a lease registered under any of those Acts, he may RULING Page 4 of 7 MSA. ELC(OS). 341 OF 2017

page 4 of 7

apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.” 7. As the Court of Appeal observed in Mtana Lewa –vsKahindi Ngala Mwagandi (2015) eKLR: “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 prerequisite being that the possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 8. In the matter herein, the Applicant testified as the sole witness in his case. He told the Court that he and his family have been in occupation of the suit property since the year RULING Page 5 of 7 MSA. ELC(OS). 341 OF 2017

page 5 of 7

1980 and that they have since built thereon and developed the same openly and without any hindrance or interruption. 9. In support of his case the Applicant produced a photograph of a residential house said to be built on the suit property. in addition, the Applicant produced documents demonstrating that the suit property was presently registered in the name of the Respondent who despite service, failed to enter appearance or to respond to the Originating Summons. 10. In the circumstances herein, the Applicant’s testimony remained uncontroverted and this Court was satisfied that the Applicant had asserted a hostile title and dispossessed the registered owner of the suit property for a period exceeding 12 years. 11. Accordingly, I was persuaded that the Applicant has proved his case on a balance of probabilities. In the premises I allow the same in terms of prayers 1, 2, 3 and 4 of the Originating Summons dated 13th September 2017. RULING Page 6 of 7 MSA. ELC(OS). 341 OF 2017

page 6 of 7

12. There shall be no order as to costs. Ruling dated, signed and delivered in open court and virtually at Mombasa this 24th day of September, 2026. ………………………….. J.O. OLOLA JUDGE In the presence of: a) Ms. Firdaus Court Assistant. b) Mr. Lisanza holding brief for Ms. Kyalo Advocate for the Applicant c) RULING No Appearance for the Respondent Page 7 of 7 MSA. ELC(OS). 341 OF 2017

page 7 of 7