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Court of AppealPartially AllowedCivil Appeal No. 20 of 1993

Joseph Gachumi Kiritu v Lawrence Munyambu Kabura

Court of Appeal of Kenya
25 October 1996
KWKwachAKAkiwumiASA. B. Shah
2,020 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Kwach, Akiwumi and Shah, JJ.A; judgment delivered by Shah JA) allowed the appellant's appeal against a High Court decree (Shields J, 27 June 1991, H.C.C.C. No. 2628 of 1988 (O.S)) ordering the respondent's registration as proprietor of LIMURU/NGECHA/688 under Section 38 of the Limitation of Actions Act. The respondent claimed to have bought a half acre from Peter Mburu Kiritu in 1974 and one and a quarter acres from the appellant, paying Shs.9,000/= in instalments ending in 1976, and built a permanent house on the land. The trial judge, relying on Hosea v Njiru, found possession became adverse on payment of the purchase price. Shah JA held that the limitation period begins only from the date of the last instalment payment, and since the respondent gave no evidence of the exact date of the 1976 payment, he failed to prove twelve years' uninterrupted adverse possession. The respondent also produced no written evidence of the sale contracts, which the law requires, and the court doubted his candour. On interruption, the court, following Public Trustee v Kamau Wanduru, held that the appellant's 1983 suit for possession did not by itself interrupt adverse possession, though it manifested an intention to assert his rights. The appeal was allowed and the High Court decree set aside, with Shah JA concurring in the orders proposed by Kwach JA. No costs order appears in the judgment.

Questions the Court framed

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

  1. 1.Whether the respondent discharged the burden of proving the date from which his possession became adverse, i.e. the date of the last instalment of purchase price
  2. 2.Whether the respondent proved uninterrupted adverse possession of the suit land for the statutory minimum of twelve years under Section 38 of the Limitation of Actions Act
  3. 3.Whether the appellant's filing of a suit for possession in 1983 interrupted the period of adverse possession

Key legal issues

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01

Commencement of the limitation period in adverse possession founded on a purchase

Holding

Time runs from the date of payment of the purchase price in full or the last instalment; without proof of that exact date, adverse possession for twelve years is not proved.

Reasoning

The respondent bought parcels in 1974 and paid the last instalment in 1976, but no evidence fixed the exact date of that payment. Following Public Trustee v Kamau Wamdiri, Bridges v Mees and Hosea v Njiru, possession becomes adverse only after the last payment, so the trial judge erred in dating adverse possession from 1974.

p. 2
02

Burden of proof on the purchaser in possession

Holding

The respondent, as plaintiff, bore the burden of proving his purchase and prescriptive rights and failed to discharge it, offering no documentary evidence of the sale.

Reasoning

Contracts for sale of land must be in writing; the respondent only said the agreement was 'recorded in a book' and could not describe how the second transaction was recorded. Despite claiming to have made a search before buying, he produced no documents, leading the court to doubt his candour.

p. 2
03

Interruption of adverse possession by the owner's suit for possession

Holding

Filing a suit for possession per se does not interrupt adverse possession, but it manifests the owner's intention to assert his right; interruption requires persistent prosecution and execution.

Reasoning

Bound by Public Trustee v Kamau Wanduru, the court held that the appellant's 1983 suit, which lay unprosecuted until transferred and consolidated, did not itself interrupt the period, since no evidence showed consistent efforts to recover possession or successful execution.

p. 3

Legal principles established

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  • A purchaser in occupation claiming adverse possession must prove the exact date of the last payment of the purchase price, from which the limitation period begins to run.
  • Contracts for the sale of land must be evidenced in writing; a claimant who cannot produce or describe the writing fails to discharge the burden of proving the sale.
  • Filing of a suit by the owner, or even obtaining a decree for possession, does not by itself interrupt the adverse possession period unless the suit is kept alive by consistent efforts to recover possession.

Court orders

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  1. 1.Appeal allowed
  2. 2.Decree of the superior court (Shields, J.) set aside

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AS
majority

Wrote the judgment

Shah JA wrote the only judgment delivered. He found the respondent failed to prove the exact date of the last instalment payment, so the 12-year adverse possession period was not proved, and allowed the appeal, setting aside the High Court decree, concurring with the orders proposed by Kwach JA.

Therefore in the end result I would allow this appeal, set aside the decree of the superior court. I concur with the orders proposed by my brother Kwach J.A.p. 4
KW
majority
AK
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2628 of 1988 (O.S)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a decree of the High Court (first appeal); no specific constitutional or statutory provision is invoked in the judgment.
Consolidated with
Kiambu R.M.C.C. No. 42 of 1983 (consolidated with H.C.C.C. No. 2628 of 1988 (O.S) for hearing)

Relief refused

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Registration of the respondent as proprietor of LIMURU/NGECHA/688 under Section 38 of the Limitation of Actions Act

The respondent failed to prove the exact date of the last payment and hence twelve years' uninterrupted adverse possession.

p. 2

Costs

No costs order is recorded in the judgment.

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.

Therefore in the end result I would allow this appeal, set aside the decree of the superior court. I concur with the orders proposed by my brother Kwach J.A.
p. 4Final orders - disposition allowing the appeal and setting aside the decree
The limitation period will begin to run from the date of payment of the purchase price in full or last instalment of it.
p. 2Commencement of limitation in adverse possession based on purchase
It transpires therefore that the respondent did not properly or at all prove that he was in adverse possession of suit land for a minimum of twelve years.
p. 2Failure of proof of the twelve-year period
Contracts for sales of land must be evidenced in writing.
p. 2Written evidence required for land sale contracts
filing of a suit by the owner or even the obtaining of a decree for possession, does not by itself interrupt the adverse possession period
p. 3Interruption of adverse possession by owner's suit

Issues in the judgment

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minor

The judgment refers to 'The first ground of appeal as argued' but earlier states the appellant relies on grounds 2 and 4 of the memorandum.

minor

OCR corruption garbles several passages, including case names and text.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Joseph Gachumi Kiritu v Lawrence Munyambu Kabura", Case Analysis (1996). Civil Appeal No. 20 of 1993. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/222/eng@1996-10-25

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