Kernderson Kamuyambeni (On Behalf of Kelvin Kamuyambeni A Minor) V MR Wil

The High Court of Malawi ruled on a legal application regarding land ownership between plaintiff Kenderson Kamuyambeni and defendant Mr. Willard Kazembe. The court dismissed the defendant's application for determination of legal issues related to adverse possession, stating that these matters should be resolved through a full trial with cross-examination. The ruling emphasized that the issues raised were already set for trial and that the application was unnecessary, with costs awarded to the plaintiff.

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Kernderson Kamuyambeni (On Behalf of Kelvin Kamuyambeni A Minor) V MR Wil

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THE REPUBLIC OF MALAWI

IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY
CIVIL CAUSE NO.587 OF 2012
BETWEEN
Kenderson Kamuyambeni (on behalf of Kelvin Kamuyambeni a minor). Plaintiff
AND
Mr Willard Kazembe Defendant

CORAM: Madalitso Khoswe Chimwaza Assistant Registrar

R. Kapile, Counsel for the plaintiff
G. Liwirnbi Counsel for defendant
G Mpandaguta Court Clerk

Ruling on Application under Order 14A RSC

This is a ruling on the summons taken out by the defendant pursuant to Order 14A Rules of
the Supreme Court (RSC) for a determination of issues on a point of law. The defendant
raised three questions to be determined namely:
1. Whether the defendant is a legal owner of the land contained in plot No.47/11085 by
virtue of adverse possession?
2. Whether the Ministry of Lands did not have title or ownership of the land by virtue of
section6 of the Limitations Act (Cap 6:02) and could not therefore pass on ownership
or title of the same to the plaintiff 12years having expired since the defendant occupied
the land.
3. Whether the plaintiff is a bonafide purchaser without notice.
4. Whether if the above questions of law are answered in favour of the defendant the
defendant is entitled to damages and costs
The application is supported by an affidavit in which the defendant deponed that the matter
was commenced by the plaintiff by way of miscellaneous summon seeking an injunction
which was granted and an originating summons was filed which was seeking among other
things declaration that the defendant be lawful owner of plot No. 47/4/1085 and a
declaration that the defendant was in wrongful and unlawful occupation of the property.
The brief facts of the defendants case is that he came on this piece of registered land in or
about 1999 and was cultivating it without hindrance. He wrote a letter to Regional
Commissioner of Lands in 2007 informing him of his occupation of the land. Letter
exhibited as WKL He wrote another letter expressing interest to buy the piece of land in
2009 letter exhibited WK2. He subsequently built a fence, a quarters, dipped a well and
planted trees on the plot such that by 2012 all these structures were already on the plot.
The defendant therefore claims to have been on the plot for more than 12 years by the time
the plaintiffs alleged title arose and therefore he is entitled to ownership and or possession
of the by virtue of adverse possession. The defendant further claims that he displayed the
animus possidendi or intention to permanently, possess the land by building permanent
structures. He further claims that the plaintiff did not act with due diligence by failing or
neglecting to conduct due search to ensure that the land in issue was not encumbered,
therefore he was not a bona fide purchaser without notice. He further claims that section of
6 of the Limitations Act, proscribes the commencement of claims concerning registered
land after the expiry of 12years of occupation and the plaintiffs claim is statute barred.
The summons is heavily opposed by the plaintiffs who raised preliminary objection to its
being heard on the grounds that Justice Kamanga had already given directions that the
matter should proceed as if it was commenced by writ of summons. The issue being raised
by the defendant in the present application raise factual issues which the judge had already
directed that they should be determined as if the action was commenced by way of a writ.
The matter is pending a date for trial therefore the present proceedings are an abuse of court
process. There were a lot of factual issues and there was need for parties to be cross
examined on their affidavits.
The Law
Order 14A of the Rules of the Supreme Court states that:
(1) The court may upon the application of a party or of its own motion determine any
question of law or construction of any document arising in any cause or matter at
any stage of the proceedings where it appears to the court that:
(a) Such question is suitable for determination without a full trial of the action,
and
(b) Such determination will finally determine (subject to any possible appeal)
the entire cause or matter or any claim or issue therein.
(2) Upon such determination the court may dismiss the cause or matter or make such
order or judgment as it thinks just.
(3) The court shall not determine any question under this order unless the parties have
either:
(a) Had opportunity of being heard on the question or
(b) Consented to an order or judgment on such determination.
Reasoned Analysis of Law and Facts
This court has noted that the issues that counsel raise to be determined are exactly what the Judge had
instructed that should come for trial so that both parties can testify and be subjected to cross examination
on their evidence. The question whether the defendant had acquired property rights on the land by
adverse possession is a question of both fact and law. The question whether the plaintiff was not a
bonafide purchaser without notice can only be determined upon verifying all the facts surrounding the
case through evidence and cross examination. That cannot be determined by looking at affidavit
evidence only. In any case the matter has already been set down for trial before a Judge and to entertain
the matter would be preempting the trial that is already due.

I therefore dismiss this application with costs to the plaintiff because this application was not necessary
in view of clear directions by the Judge. The substantive matter will proceed for hearing before a Judge
as already set down accordingly.