REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO.132 OF 2015 (OS)

1. FABIA CAMPANELLA                                                               

2. PAOLA CAMPANELLA....................................APPLICANTS

=VERSUS=

1. ROCCHI PAMPEO                                                                     

2. ANGELLO RICCI                                                                        

3. LAND REGISTRAR, MOMBASA                                              

4. THE HON. ATTORNEY GENREAL...............RESPONDENTS

J U D G M E N T

1. The Originating Summons before me is dated 3^rd August, 2015.  In the Summons, the Applicants are seeking for these orders:-

(a)  The Applicants have become entitled by adverse possession of all that land measuring approximately 1.131 acres on Plot No. 1883 (424/31) situated in Malindi.

(b) The Applicants be registered as the proprietors of the said entire land measuring approximately 1.131 Acres on Plot No. 1883 (424/31).

2. The suit is premised on the grounds that the Applicants have been in adverse possession of the suit property for over 12 years.

3. According to the deposition of the 1^st Applicant, the 1^st Respondent was registered as the proprietor of the suit property vide an Indenture of Conveyance dated 19^th November, 1991; that on 12^th October, 1994, an Indenture of Conveyance between the 1^st Respondent, Mazzi Alma and Stanzani Pincle in respect of half share in the suit property was registered and that on 18^th February, 1997, another Indenture between the 2^nd Respondent and the 1^st Respondent in respect of the undivided shares was registered.

4. It is the deposition of the 1^st Applicant that on 2^nd April 2003, an Indenture between Stanzani Pincla and himself was registered while an Indenture between the 2^nd Applicant was registered in respect of the half share of Mazzi Almas remaining parcel of land on 21^st June, 2005.

5. Although the 1^st and 2^nd Respondents are the registered proprietors of part of the suit land, the 1^st Applicant has deponed that they have abandoned their share for more than 12 years; that  it is himself and the 2^nd Applicant who have been residing on the land and that they have been paying the rates for the said portion.

6. It is the 1^st Applicant's deposition that him, together with the 2^nd Applicant, should be registered as the proprietors of the suit property.

7. Although the Respondents were served with the Originating Summons, they neither entered appearance nor filed a Replying Affidavit.

8. The Applicants' advocate filed detailed submissions and authorities which I have considered.

9. On the basis of the documents before me and the deposition of the 1^st Applicant,  and in the absence of a defence from the Respondents, I am satisfied that the Applicants have lived on the suit property for than 12 years nec vi, nec clem, nec precario.

10. For those reasons, I allow the Originating Summons dated 3^rd August 2015 as prayed.

Dated, signed and delivered in Malindi this  14^th day of  September,  2016.

O. A. Angote

Judge