Some 5,000 squatters living on a parcel of land in Vikwatani, Mombasa County, have lost a case in which they sought to obtain a title deed for the land by way of adverse possession.
The age-old principle has been used by many in Kenya to acquire land from unsuspecting owners.
The squatters claimed to have resided peacefully and uninterrupted on the 350-acre land for over 12 years.
But the Environment and Land Court in Mombasa dismissed the case by the squatters, who had sued Pwani Jezozhum Company Ltd. The court said evidence showed it was filed seeking orders regarding a title deed that no longer exists.
“On a balance of probabilities, the evidence tendered shows that this title was surrendered and it has been subdivided into many plots with titles issued under the regime of the Registered Land Act,” ruled Justice Sila Munyao.
He also noted that the registers (green cards) to the (subdivided) titles were displayed in court and it was apparent that the squatters were seeking adverse possession to a title that no longer exists.
“It is trite that you cannot claim a title that is no longer in existence. On that ground alone, this suit must fail,” the judge said.
“It is thus not necessary for me to go deep into the evidence to analyse whether or not the evidence tendered demonstrates a peaceful, open and uninterrupted possession of at least 12 years before the suit was filed.”
Over 10 squatters had filed the case on behalf of others on November 5, 2009, claiming the title to the land by way of adverse possession.
According to an affidavit from one of the squatters, Kabu Mudachi, through a transfer dated October 1, 1987 and registered on October 30, 1987, Pwani Jezozhum was registered as proprietor of the land.
Mr Mudachi said that before the company purchased the land, he had been in occupation of it since 1964, and that in 1978 he built a house on it and has peacefully occupied it uninterrupted since.
He said that the other plaintiffs, too, said they had been living on the land before Pwani Jezozhum purchased it, had built houses and had been in possession of it for over 20 years when the case was filed.
Pwani Jezozhum opposed the case, saying it purchased the land with a loan from the Agrarian Building Society and the transfer was made on October 30 1987.
It said that on December 15 1987 a subdivision scheme was approved under terms that included reasonable compensation to squatters, if any, for their structures.
And on January 29 1988, the Mombasa Land Control Board gave consent to subdivide the land. The subdivision involved change of use from agricultural to residential, commercial, educational, religious and health centre purposes.
The company said that on March 28, 1990 the Ministry of Lands, Housing and Physical Planning approved the subdivision scheme. The original title was then surrendered.