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M'Mbaoni M'Ithara v. James Mbaka

(2019) JELR 99188 (CA)

Court of Appeal  •  Civil Appeal 38 of 2017  •  6 Feb 2019  •  Kenya

Coram
Martha Karambu Koome, Fatuma sichale, Stephen Gatembu Kairu

Judgement

JUDGMENT OF THE COURT

[1] The subject matter of this appeal are pieces of land known as Land Reference No. Karingani/ Mugirirwa/ 907 and Karingani/ Mugirirwa/908 (suit land). The suit before the High court was filed by M’Mbaoni M’Ithara (appellant) by way of an originating summons in which he required James Mbaka (respondent) to transfer to him the suit lands which he claimed to have acquired by virtue of adverse possession. This claim was predicated under Section 38 of the Limitation of Actions Act, which provides;-

“(1) where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may 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.

(2) An order made under subsection (1) shall on registration take effect subject to any entry on…

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