Mombasa man loses bid to take adverse possession of five-acre land

The Environment and Lands Court has dismissed a man’s bid to take adverse possession of a five-acre piece of land belonging to Quadco Two Hundrend and Forty-Four Limited on account that he has stayed on it for more than 12 years.

Sitting in Mombasa, Justice Stephen Kibunja, in a judgement delivered on Wednesday, February 19, Stanley Mwachilangu had failed to failed to prove his claim to the standard required of balance of probabilities.

The judge added that in law, a person basing their claim on adverse possession must accept the title rests with the registered proprietor, whose title they are essentially challenging and seeking to be cancelled, and it be registered in their favour.

In the suit, Mwachilangu had alleged that Quadco Two Hundrend and Forty-Four Limited was registered as the proprietor of the land “through misrepresentation, fraud and or deceit.”

However, he did not set the particulars of misrepresentation, fraud or deceit that he attributed to the company, or present any evidence to the court through affidavit or orally in support of his claim.

The judge noted that in any case, a civil claim of land based on misrepresentation, fraud or deceit is best presented to the court through a plaint and not originating summons.

Justice Kibunja added that in view of the inconsistencies and findings, Mwachilangu failed to discharge his burden of proof, and dismissed his case.

In his affidavit, sworn on November 23, 2023, Mwachilangu stated that he has built a permanent structure on the land where he lived with his family peacefully without any interference for over 12 years.

On December 11, 2023, he applied to be allowed to serve the company through one of the daily newspapers, stating that he had fail to trace the whereabouts of Quadco Two Hundrend and Forty-Four Limited, which was allowed by the court on January 22 last year.

During the hearing, Mwachilangu testified on oath as the first witness that his father was employed by the company as a caretaker of land and that he used to visit him.

“My father died in 2001 and was buried in the village. I returned to the suit property sometimes in 2003 and built a car wash and a hotel. The respondent would visit me and pass greetings before leaving,” Mwachilangu stated.

He stated that he had leased the kiosk/hotel to one Wakesho at Ksh 1,000 per month since 2004, adding that he occupies only one and a half acre and that the remaining acres are vacant.

Further, Mwachilangu told the court that the last time the respondent visited the land was in 2017, adding that his structures are built of iron sheets.

Justice Kibunja noted that “adverse possession is a widely recognised legal concept for landless people to acquire idle land or land held by absentee landlords, that they have been in exclusive occupation and or possession.”

Justice Kibunja referred to the case of Alfeen Mehdimohammed versus Basil Feroz Mohamed & 223 Others [2016] where the court provided guidelines for consideration in adverse possession.

In considering the guidelines given, and referring to the current suit, Justice Kibunja said “the applicant’s claim that he entered, and has remained on the suit property without the consent or permission of the registered owner, is doubtful.”

In dismissing the application, he added that, “it would be absurd for the respondent to make visits to the land, greet the applicant, a squatter, and leave without questioning his occupation if it had not given him permission to be on the suit property. A registered owner of a land who frequently visits the property cannot be said to have been dispossessed of the land.”

The judge further noted that since the respondent visited the property in 2017 and the time the suit was filed on 2023 it was only six years which falls short of the period required before adverse possession can kick in.

He ordered Machilangu to meet his own costs.