Charles Aluzage Kagali v Joseph Hinga Gathii [2021] KEELC 2685 (KLR)

Facts

The plaintiff claimed adverse possession of 0.045 hectares of land, which is a sub-division of a larger parcel of land. The plaintiff claimed he entered into a sale agreement with Jomaths Company Limited on 13 October 1997, and the defendant admitted to the plaintiff's occupation but denied consent.

Issues

1. Whether the plaintiff has been in open, continuous and uninterrupted occupation of 0.045 hectares of land.
2. Whether the occupation has been without the consent of the defendant.
3. Whether the defendant's title has been extinguished in respect of the land parcel by adverse possession.
4. Whether the plaintiff is entitled to be registered as the proprietor of the land.
5. Whether the defendant should execute the requisite instruments of transfer and in default, the Deputy Registrar of the court should execute the same.
6. Who should meet the costs of the suit.

Reasoning

The court held that adverse possession requires open, continuous, and uninterrupted possession without the consent of the true owner. The plaintiff's possession was not interrupted and the defendant did not take any steps to remove the plaintiff's occupation. The court also held that adverse possession is not extinguished by the defendant's title.

Outcome

The court held that the plaintiff is entitled to be registered as the proprietor of the land.

Authorities cited