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Court of AppealDismissedCivil Appeal (Kisumu)

Kweyu v Omuto (Civil Appeal 8 of 1990) [1990] KECA 63 (KLR)

Court of Appeal
27 December 1990
AHARW HancoxJGJE GicheruACAM Cockar
4,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Living on someone's land with their permission, or under a disputed claim, does not start the clock for claiming ownership through adverse possession in Kenya.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Kisumu against the dismissal by Mbogholi-Msagha J of an originating summons brought under section 38(1) of the Limitation of Actions Act, in which the appellant sought to be registered as proprietor of 6 acres out of land parcel No E Wanga/Isongo/1512 on the ground of adverse possession since 1973. The appellant alleged he had purchased the land from the respondent for K.Shs. 3,000 and had been in quiet and undisturbed possession for over 13 years. The respondent denied any sale to the appellant, asserting the occupation was illegal and disputed, and that any sale agreement would have been between the appellant's father and the respondent's deceased elder brother. The trial judge found the parties were not parties to any sale agreement and that the appellant's evidence fell short of the required standard, dismissing the suit with costs. The Court of Appeal, in three judgments, dismissed the appeal. Gicheru JA held the claim failed primarily because the supporting affidavit lacked the certified extract of title mandated by Order XXXVI rule 3D, and also because the appellant's occupation was disputed rather than adverse; he would have awarded costs to the respondent. Cockar Ag JA, agreeing with the trial judge's findings on the sale, held that adverse possession and permissive possession cannot co-exist, and that no certified extract of title had been annexed. Hancox CJ agreed with Cockar Ag JA. The majority dismissed the appeal with no order as to costs, as neither party was represented by an advocate.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant had been in adverse possession of the suit land for over 12 years so as to be entitled to be registered as proprietor under section 38(1) of the Limitation of Actions Act
  2. 2.Whether the trial judge erred in failing to consider the appellant's alleged purchase of the land and the duration of his occupation
  3. 3.Whether the originating summons was procedurally defective for failure to annex a certified extract of title

Key legal issues

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01

Whether the appellant acquired title by adverse possession

Holding

The claim fails. The appellant's occupation originated permissively through a sale arrangement between his father and the respondent's brother; the respondent disputed the occupation from the outset, so possession was never adverse.

Reasoning

The trial judge found that any sale agreement was between the appellant's father and the respondent's deceased brother, not between the parties before the court. The respondent admitted the appellant occupied in 1973 but asserted he never permitted or acquiesced in it, and disputes went before elders and the Assistant Chief. Possession claimed under a sale from the wrong party is not hostile to the true owner, and adverse possession cannot begin where occupation is disputed or permissive.

p. 5
02

Procedural adequacy of the originating summons under Order XXXVI rule 3D and section 38 of the Limitation of Actions Act

Holding

The originating summons was defective because the supporting affidavit did not annex a certified extract of the title to the land claimed.

Reasoning

Order XXXVI rule 3D subrules (1) and (2) mandate that a section 38 application be brought by originating summons supported by an affidavit annexing a certified extract of title. The appellant's affidavit contained no such annexure, so the certainty of the existence and proprietorship of the suit land could not be guaranteed and an order under section 38(1) was incapable of being made. Gicheru JA dismissed the appeal on this ground alone.

p. 3
03

The nature of adverse possession as a legal conclusion

Holding

Possession is a matter of fact, but whether it is adverse is a legal inference the court must draw from proved findings of fact; a summary disposal without such findings is injudicious.

Reasoning

Relying on Rustomji on the Law of Limitation and Adverse Possession, the court held that adverse possession must be hostile, actual, open, uninterrupted, notorious, exclusive and continuous, resting on de facto use and occupation, and the adverse character of possession must be proved as a fact and cannot be assumed from mere exclusive possession. The trial judge's failure to make findings on the possession claim was criticized, though the appeal still failed.

p. 5

Legal principles established

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  • Adverse possession and possession with permission cannot co-exist; time does not run in favour of a possessor until the permitted possession expires.
  • Whether possession is adverse is a matter of legal inference from proved facts; a court must make a finding of fact on the claim rather than dispose of it summarily.
  • An application under section 38 of the Limitation of Actions Act must be made by originating summons supported by an affidavit to which a certified extract of the title to the land is annexed; without it an order under section 38(1) cannot be made.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs (neither party was represented by an advocate)

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

JG
partial dissent

Wrote the judgment

Agreed the appeal should be dismissed because no certified extract of title was annexed to the supporting affidavit as required by Order XXXVI rule 3D, but would have awarded costs to the respondent.

It is for this reason only that I would dismiss the appellant’s appeal with costs to the respondent.p. 6
AC
majority

Wrote the judgment

Found the trial judge correctly concluded that no sale agreement existed between the parties; adverse possession and permissive possession cannot co-exist, and the originating summons was defective for want of a certified extract of title annexed. Appeal dismissed with no order as to costs.

Considering all the aspects involved in this appeal we are satisfied that the learned judge was quite right in dismissing the originating summons. The appeal is dismissed.p. 7
AH
majority
On appeal from
High Court
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a first appeal from the High Court (originating summons under section 38 of the Limitation of Actions Act)

Relief refused

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Registration of the appellant as proprietor of 6 acres out of land parcel No E Wanga/Isongo/1512 by adverse possession

No sale agreement existed between the parties; occupation was permissive and disputed; adverse possession and possession with permission cannot co-exist; and the originating summons lacked the mandatory certified extract of title

p. 7

Costs

As neither party was represented by an advocate there shall be no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That is vital because adverse possession and possession with permission. cannot co-exist. Adverse possession does not start until the date of possession with permission (which usually follows a sale of land) expires
p. 7adverse possession versus permissive possession
Thus, whereas possession is matter of fact, the question whether that possession is adverse or not is matter of legal conclusion to be drawn from the findings on facts
p. 5adverse possession as legal inference
Considering all the aspects involved in this appeal we are satisfied that the learned judge was quite right in dismissing the originating summons. The appeal is dismissed.
p. 7disposition
As neither party was represented by an advocate there shall be no order as to costs.
p. 8costs - final orders
The adverse character of the possession must be proved as a fact; it cannot be assumed as a matter of law from mere exclusive possession, however long continued.
p. 5proof of adverse possession

Issues in the judgment

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minor

The judgment text contains an apparent omission: 'The record of proceedings in the superior court does not indicate In his responding afidavit sworn on 5th June, 1987...' - the sentence is incomplete, suggesting missing text in the record.

minor

The three judges differ on costs: Gicheru JA would dismiss with costs to the respondent, while Cockar Ag JA and Hancox CJ dismissed with no order as to costs.

minor

The case number of the appeal is not stated in the judgment; only the delivery station and date appear.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Kweyu v Omuto (Civil Appeal 8 of 1990) [1990] KECA 63 (KLR)", Case Analysis (1990). Civil Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/63/eng@1990-12-27

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