IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. xxxxxxx OF 2005 (O.S)
IN THE MATTER OF THE LIMITATION OF
ACTIONS ACT
AND
IN THE MATTER OF LAND PARCELS REFERENCE
NO. 196/XX
RRRRRRRRRRRRRRRRR………………………………….………….PLAINTIFF
VERSUS
UUUUUUUUUUUUUUUUUUUUUUUU………………………………….DEFENDANT
ORIGINATING SUMMONS
(Under Sections
17, 18, 37, and 38 of the Limitation of Actions Act Cap 22 of the Laws of Kenya
LET UUUUUUUUUUUUUUUUUUUUUU of Post Office Box xxxxxxx – 00502 Nairobi enter
appearance within 15 days after service of this summons which is issued on the
application of RRRRRRRRRRRRRRRRR who
claims to have acquired Land Reference No. 196/XX hereinafter called the suit
land for ORDERS THAT:
- The Applicant be
declared to have become the legal owner entitled by adverse possession of
over twelve (12) years since 1989 ALL THAT parcel of land comprised in
Title Number LR No. 196/XX situated in Nairobi.
- The said Applicant be
registered as the sole proprietor of the said parcel of land namely LR No.
196/XX in place of the above named Respondent in whose favour the land is
currently registered.
- The last original
indentures in respect of LR No. 196/XX which are with the Respondent be
dispensed with.
- Costs of this
application be provided for.
THIS SUMMONS is supported by the affidavit of RRRRRRRR and on
other grounds to be adduced at the hearing hereof.
This summons was taken out by M/s
Sheilla Sheikh & Associates Advocates for the above named RRRRRRRRRRRRR.
Dated at Nairobi this day of 2005
xxxxxxxxxxxx & Associates
Advocates for the Applicant
Drawn & Filed By
xxxxxxxxxxx & Associates
Advocates
Westlands
P.O. Box 4XX23 – 00100
To Be Served Upon
UUUUUUUUUUUUU
Catmose Farm
Uppingham
Oakham
U.K (Service through
applicant’s Advocates Office)
(If the Respondent does not enter an appearance within the time above
mentioned such order may be made and proceedings taken as the court may think
just and expedient.)
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. xxxxxxx OF 2005 (O.S)
IN THE MATTER OF THE LIMITATION OF
ACTIONS ACT
AND
IN THE MATTER OF LAND PARCELS REFERENCE
NO. 196/XX
RRRRRRRRRRRRRRRRR………………………………….………….PLAINTIFF
VERSUS
UUUUUUUUUUUUUUUUUUUUUUUU………………………………….DEFENDANT
SUPPORTING AFFIDAVIT
I,
RRRRRRRRRRRRRRR, of P.O. Box xxxxxxxx-00502 , Nairobi Republic
of Kenya
1. THAT I am the plaintiff herein with the knowledge of the
facts in issue hence I am competent to swear this affidavit.
2. THAT I have been living on land parcel known as LR No.
196/XX Farm lane, off Dagoreti Road Karen, Nairobi
3. THAT The Defendant is the registered proprietor of the suit
land. I attach hereto and mark AR – 1 a
true certified copy of the title deed to the suit land.
4. THAT I learnt of the existence of the said land in 1989
through one Simonson who was the Defendant’s next door neighbour.
5. THAT Mr. Simonson informed me, which information I verily
believed to be true that the Defendant had vacated the suit land sometime in
1970’s and left Kenya
6. THAT initially I intended to enter upon the suit premises
as a tenant and therefore, Mr. Simonson referred me to one D. Vincent who was
an estate agent. I paid Mr. Vincent Kshs.
6,000, being a finder’s fee and when I sought to know about the rent, Mr.
Vincent informed me that all issues related to rent would be sorted out
later. He further reiterated that he had
no instructions from the Defendant regarding the issues of rent, but the
Defendant would liaise directly with me on the matter. I then moved into the suit premises and, I
sought to hear from the Defendant regarding the tenancy if at all he was
interested but he informed me that he would prefer to sort out the issue when
he and his family came back from England
7. THAT I moved onto the premises in or around August
1989. The house was in complete dilapidated
state. The grounds were also in an
unkempt state and the boundary fences were being encroached upon by the
neighbouring slum dwellers.
8. THAT as soon as I moved onto the premises I started repairing
the house to bring it to a habitable standard.
I carried out extensive repairs using my own money in order to make the
house habitable. In addition I spent a
lot of money to build and maintain a fence around the boundary so as secure the
premises and enjoy the use of land to the exclusion of all other neighbours.
9. THAT in the interim, although the Defendant was aware that
I was living on the premises he made no efforts to demand rent or appoint an
agent or a lawyer to collect rents or make any payments. As a consequence, no Lease Agreement, rent
agreement or any form of agreement or contract was ever drawn, executed or
entered into.
10. THAT the Defendant treated the whole matter in a very
casual and indifferent manner almost to a point that one would be forced to
conclude that he was not at all interested in the land. This attitude was further reinforced by the
fact that the Defendant, never made out a rent demand note, a rent invoice or
bill, asking for any form of rent.
11. THAT although I wrote to the Defendant, having obtained his
address from D. Vincent enquiring on the issue of the rental the Defendant very
casually informed me that he would sort the rents once he came to Kenya
12. THAT to the best of my knowledge, neither the Defendant nor
his wife have ever come back to Kenya
since they left to settle and make their future in Britain
13. THAT in the interim I paid up all the utility bills
inclusive of water, electricity, telephone and land rates, I annex and make the
same as AR-2
14. THAT in addition to paying all the utility bills I have
continuously maintained the dwelling house, the grounds, the boundary fence and
all other facilities on the premises to a reasonable habitable standard all at
my own cost.
15. THAT for almost a 10-12 year period I never heard from the
Defendant, and I positively believed that he had died as he is fairly old. It was not until last year in 2004, when the
Defendant wrote to me informing me that one David Harber who is and Estate
Agent would be coming to the suit premises to value the property.
16. THAT the said David Harber who was appointed by the
Defendant came in or around April 2004, to carry out a valuation of the
property.
17. THAT being an Estate Agent David Harber has a vested
interest in the property as he would make a substantial commission from selling
it for the Defendant.
18. THAT the main purpose of the valuation is to sell the
property, yet I am advised by my advocate Shella Sheikh that I have acquired a
right of adverse possession which right can be sought for at this Honourable
Court. Hence there is every likelihood
that the suit property is in grave danger of being sold at the peril of my
interest.
19. THAT in addition I would like to further reiterate that my
wife, Carolyn, moved into the suit premises in 1990 and we formalized our
marriage in 19993.
20. THAT we have since been blessed with three issues of our
marriage, namely: Alex born in 1993, George born in 1995 and Katherine born in
2001.
21. THAT consequently, my family and I have enjoyed
uninterrupted continual possession of the said property since August 1989.
22. THAT I have lived on the suit land without
surreptitiousness, and with the knowledge of the Defendant without paying him
rent, license fee or any other consideration and in a manner totally adverse to
his interest on the suit property but he has never interfered with my
occupation of the suit land.
23. THAT I have to date been settling and paying all Land Rates
and utility Bills as they have fallen due form time to time since 1989 to
date. So far, the amount of land rates I
have paid in respect of the land parcel amounts to Kshs. 459,475.30. I have made these payments in spite of the
bills being addressed tot eh registered owner of the land parcel who is the
Defendant herein. I attach hereto and
mark AR – 3 being true copies of the
receipts in respect of the land rates paid.
24. THAT I
pray tot eh Honourable Court to declare me the legal owner entitled by adverse
possession of over twelve (12) years since 1989.
25. THAT I have invested colossal sums of money in making
substantive improvements to the existing dwelling house on the property and
marinated it to a habitable standard continuously over since 1989. In addition
I have kept the grounds in excellent condition and maintained a boundary fence
around the property at al times since 1989.
26. THAT I am advised by Ms Shella Sheikh, which advice I
verily believe to be rue that I have a right of ownership by adverse possession
in respect of the suit land which right accrued to me by virtue of my
uninterrupted, continual, exclusive possession of the suit property for more
than twelve years from 1989.
27. THAT what I deponed to herein is true to the best of my
knowledge, and save where the sources and basis thereof have been disclosed,
information and belief.
Sworn at Nairobi
RRRRRRRRRRR } ………………………………….
This
day of 2005 }
Deponent
}
}
Before Me }
}
}
Commissioner for Oaths }
Drawn & Filed By
xxxxxxxxx &
Associates
Advocates
Thank you
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