![]() ![]() ![]() The Defendant's/Applicant's counsel submitted that under the doctrine of ex dolo malo no oritur actio, this court, as a matter of public policy, has no jurisdiction to entertain the claimant's claim. The deprivations of property as provided under Section 38 of the Limitation of Actions Act, it was submitted, is not one of the constitutional ways of depriving the Respondent of his right to property. However, with the promulgation of the Constitution in August 2010, it was submitted, the court no longer has jurisdiction to dispose the true and or registered owner of the land in order to give the property to a trespasser.Ĭounsel submitted that the omission of a clause in the Constitution similar to those of section 75(6)(c) (vi) of the repealed Constitution was not by mistake but by a deliberate design by the people of Kenya with the clear intention to do away with the doctrine or concept of acquisition of property by adverse possession or pursuant to the limitation of action legislations.Īccording to the Defendant's/Applicant's counsel, any legislation that violates property rights enshrined under the Constitution by giving power to state organs like the judiciary to arbitrarily deprive property owners of their land is unconstitutional, null and void.Ĭounsel cited Section 7 of the sixth schedule to the Constitution and submitted that the Limitation of Actions Act should conform with the provisions of the Constitution, and in particular Article 40. The Defendant's/Applicant's counsel further submitted that disposition of property under the doctrine of adverse possession was rooted under section 75 (1) and section 75(6) of the repealed Constitution.Īccording to counsel, Sections 37 and 38 of the Limitation of Actions Act which provides for the acquisition of land by a squatter at the expiry of twelve (12) years had the constitutional backing of the repealed Constitution. Counsel submitted that the basis for adverse possession in Kenya was the repealed Constitution, the Limitation of Actions Act, the common law and judicial decisions. The Defendant's/Applicant's advocate submitted that adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire a valid title to it, as long as certain common law requirements are met. ![]() That under the doctrine of ex turpi causa non oritur action and or ex dolo malo no oritur action this court as a matter of public policy and the new Constitutional dispensation has no jurisdiction to entertain the claimant's claim.The court does not have jurisdiction and That pursuant to the provisions of Section 7 to the Sixth Schedule to the Constitution, Section 38 of the Limitation of Actions Act is in conflict and or contravention with the express provisions of section 40 of the Constitution and the same is null and void pursuant to the provisions of Article 2 of the Constitution and the said section 38 of the Limitation of Action Act cannot be the basis on which this Honourable Court can assume Jurisdiction over this matter.That pursuant to the provisions of Article 40 as read together with Article 2 and 3 of the Constitution of Kenya 2010, this court does not have jurisdiction to entertain the claimants claim filed herein.In the suit, the Plaintiff/Respondent is seeking for a declaration that he has been in possession of land known as Tezo/Roka/374 peacefully, openly, and continuously without interruption for a period exceeding twelve (12) years.īefore the matter could be heard, the Respondent filed a Notice of Preliminary Objection in which he has raised the following issues for determination. ![]() This claim was commenced by way of an Originating Summons filed pursuant to the provisions of Order 37 Rule 7 of the Civil Procedure Rules. KAHINDI NGALA MWAGANDI.PLAINTIFF/RESPONDENT Constitutionality of the doctrine of adverse possession ![]()
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