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Court of AppealDismissedCivil Appeal, High Court Civil Case No 45 of 1981 (Mombasa)· [1984] KECA 71 (KLR)

Wanje & Others v AK Saikwa & Others (Civil Appeal 72 of 1982) [1984] KECA 71 (KLR)

Court of Appeal of Kenya
27 July 1984
3,782 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that land occupied with an owner's permission can only become adverse possession after that permission is properly ended and twelve years pass.

What this practically means

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Executive summary

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This unanimous Court of Appeal judgment at Mombasa (Chesoni Ag JA, Hancox JA and Nyarangi Ag JA) dismissed the appeal of eighty surviving appellants against Schofield J's orders declaring the four respondents registered owners of 444-acre plot No 384/II Mainland Mombasa, ordering eviction and awarding damages of Kshs 7,000. The appeals of fourteen deceased appellants were struck out with no order as to costs, and leave to adduce fresh evidence was refused because the affidavit merely repeated trial testimony. The core question was whether the appellants, occupiers since before 1962 originally under monthly licences from the Morrison estate, had acquired title by adverse possession under sections 7, 13 and 17 of the Limitation of Actions Act (cap 22). The court held their occupation was permissive throughout: licencees until 1962, then tenants at will of Hussein Dairy Ltd and of the respondents. Possession with consent is neither illegal nor adverse; time began to run only when the tenancy at will was determined by the respondents' demand for possession in 1974/January 1975, so only about six of the required twelve years had elapsed when the suit was filed in January 1981. The claim was also neither pleaded nor proved at trial. As tenants at will the appellants could not be trespassers, but once the tenancy was determined they had no right known in law to remain. The court distinguished Wainaina v Murai and Gatimu Kinguru v Muya Gathangi as cases of occupation by consent, and applied Sisto Wambugu v Kamau Njuguna and Leigh v Jack.

Key legal issues

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01

Whether the appellants' occupation was adverse to the registered owners

Holding

It was not: the appellants occupied with the consent of successive owners, first under licences and later as tenants at will, so their possession was permissive and not adverse.

Reasoning

The licences granted in 1961 lapsed when Hussein Dairy Ltd bought the land in 1962, after which the appellants remained as tenants at will. Occupation with consent is not illegal and does not dispossess the owner. The tenancy at will was determined only when the respondents demanded possession in 1974/January 1975, from which date time for adverse possession began to run. By the filing of the suit in January 1981 only about six years had elapsed, short of the twelve years required.

p. 4
02

Whether a party may raise adverse possession on appeal although it was not pleaded at trial

Holding

The court held that even if adverse possession had been pleaded it would have failed, so the pleading point was not decisive but was noted.

Reasoning

The agreed issues in the High Court did not include adverse possession; it surfaced only in closing submissions. The court accepted the trial judge's finding that adverse possession was neither pleaded nor proved, and further found that on the evidence the twelve-year period had not matured when the suit was filed, so the claim would have failed in any event.

p. 3
03

Whether the appellants were trespassers

Holding

During the period of permissive occupation they were not trespassers, but their right to remain has since been effectively determined and they now have no right known in law to be on the land.

Reasoning

Tenants at will are permissive occupiers and cannot simultaneously be trespassers, following Sisto Wambugu v Kamau Njuguna. However, once the tenancy at will was determined by demand for possession and the statutory period had not accrued in their favour, their entitlement came to an end.

p. 5

Legal principles established

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  • A person who occupies land with the owner's consent, whether as licensee or tenant at will, cannot claim adverse possession until that permissive occupation has been effectively determined; time only runs from the determination.
  • For occupation to be adverse it must be inconsistent with the true owner's enjoyment of the soil for the purpose for which he intended to use it.
  • A tenancy at will may be determined by a demand by the landlord for possession without a formal notice; under section 12(1) of the Limitation of Actions Act a tenancy at will is otherwise deemed determined one year after commencement.

Court orders

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  1. 1.Appeals of fourteen deceased appellants struck out with no order as to costs
  2. 2.Appeal by the surviving eighty appellants dismissed
  3. 3.Judgment of Schofield J (declaration, eviction and damages of Kshs 7,000) left standing
On appeal from
High Court of Kenya at Mombasa
HCCC No 45 of 1981
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wanje & Others v AK Saikwa & Others (Civil Appeal 72 of 1982) [1984] KECA 71 (KLR)", Case Analysis (1984). Civil Appeal, High Court Civil Case No 45 of 1981 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/71/eng@1984-07-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.