Alibhai v Alibhai (Civ. App. No. 12-1937)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Certificates of ownership issued under the Land Titles Ordinance confer absolute and indefeasible title to the property referred to therein, subject only to interests mentioned in the certificate. No period of prescription against registered title can begin to run prior to the date of grant of certificate. The applicable prescriptive period is twenty years under section 41 of the Limitation Ordinance 1934. Since the respondent's certificate was granted in 1923 and the suit was filed in 1934, insufficient time had elapsed for the respondent to acquire a prescriptive easement. The appeal was allowed.

Outcome

Appellant granted order for removal of encroaching structures and vacant possession of encroached land

Facts

In 1923, the appellant became registered owner of plot 415 and the respondent of adjoining plot 416 in Mombasa. The plots were separated by a wall. For many years prior to 1915, a staircase, wooden landing and balustrade giving access to the upper portion of the house on plot 416 encroached on plot 415. Both plots were originally held by the parties' father from 1893. In 1915, following partition proceedings, the parties executed mutual conveyances with general words including all rights, easements and appurtenances. In 1923, certificates of ownership were granted to both parties under the Land Titles Ordinance 1908. The appellant sued for removal of the encroaching structures. The respondent counter-claimed for a declaration of easement by prescription. The Supreme Court dismissed the claim and allowed the counter-claim. The appellant appealed.

Issues

1. Whether a certificate of ownership under the Land Titles Ordinance confers absolute and indefeasible title subject only to interests mentioned therein.
2. Whether a period of prescription against registered title can begin to run prior to the date of grant of certificate of ownership.
3. What is the applicable prescriptive period for acquiring an easement against registered land.

Orders

• Appeal allowed.
• Judgment entered for the appellant as prayed for in paragraphs (i) and (ii) of the plaint.
• Costs awarded to the appellant in the Court of Appeal and in the Supreme Court.

Rules and key headnotes

Legislation cited (9)

• Limitation Ordinance 1934 s.41
• Limitation Ordinance 1934 s.10
• Land Titles Ordinance Cap. 143 s.21
• Land Titles Ordinance Cap. 143 s.27
• Land Titles Ordinance Cap. 143 s.20
• Land Titles Ordinance Cap. 143 s.15(2)(b)
• Registration of Titles Ordinance Cap. 142 s.2
• Registration of Titles Ordinance Cap. 142 s.23
• Registration of Titles Ordinance Cap. 142 s.20

Cases cited (11)

• Suleman Virji and Sons v Abdurehntan bin Mohamed Afua (9 K.L.R. 167)
• Belize Estate and Produce Co v Quilter [1897] AC 367
• Reid Hewitt and Co v Joseph [1918] AC 717
• Henry William Farrar v Yusufali Abdulhussein Adamji (16 K.L.R. 40)
• Kooystra v Lucas (106 E.R. 1394)
• Kay v Oxley (10 Q.B. 360)
• Bayley v G. W. Railway Co (26 Ch.D. 434)
• Barkshire v Grubb (18 Ch.D. 616)
• Simpson v Weber (133 L.T. 46)
• Bird v Standard Oil Co of Canada Ltd (114 L.T. 316)
• Suleman Virji v Abdulrehman bin Mahomed Afua (9 E.A.L.R. 167)

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