Wanje & Others v AK Saikwa & Others (Civil Appeal 72 of 1982) [1984] KECA 71 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the appellants' occupation was adverse to the registered owners
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.
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.
Whether a party may raise adverse possession on appeal although it was not pleaded at trial
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.
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.
Whether the appellants were trespassers
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.
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.
Legal principles established
#- 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
#- 1.Appeals of fourteen deceased appellants struck out with no order as to costs
- 2.Appeal by the surviving eighty appellants dismissed
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mumira v Githae (Enviromental and Land Originating Summons 21(B) of 2022) [2026] KEELC 1803 (KLR)[2026] KEELC 1803 (KLR)24 Mar 2026applied
Cite this brief
#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.