Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 49 of 1996

Murathe v Gathimbi (Civil Appeal 49 of 1996) [1998] KECA 207 (KLR)

Court of Appeal of Kenya
6 March 1998
JGJ. E. GicheruAAA. M. AkiwumiGPG. S. Pall
2,828 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Filing a counterclaim to recover your land stops an adverse possession clock in Kenya, so the owner regained possession.

What this practically means

#

Executive summary

#
The Court of Appeal allowed the appellant registered proprietor's appeal against the High Court's dismissal of his counterclaim for possession of agricultural land. The respondent had bought the land in 1972 from Ayub Nguyai 'B', but the sale became void for want of Land Control Board consent; the vendor's heirs later sold the land to the appellant, who was registered as proprietor in 1979. When the respondent sued in 1974 (amended plaint filed 1979) seeking specific performance or a declaration of trust, the appellant counterclaimed for possession and mesne profits. The High Court (Justice Shields) dismissed the counterclaim, holding the respondent had been in possession for over twelve years, relying on section 30(f) of the Registered Land Act and counsel's submissions in Pugh v Heath. The Court of Appeal held that the respondent's possession only became adverse when the sale agreement became void in December 1972; before that he was a licensee. Critically, applying the Court's unanimous decision in Kiritu v Kabura and Heath v Pugh, the Court held that the appellant's 1979 counterclaim - having the same effect as a cross suit - asserted the owner's right and stopped time from running under the Limitation of Actions Act. The respondent therefore had not accrued twelve years of uninterrupted adverse possession. The judgment and decree below were set aside, the appellant was granted vacant possession, and costs of the appeal and the court below were awarded to the appellant. The binding rule for lower courts is that the filing of a suit, including a counterclaim, for recovery of land interrupts adverse possession.

Questions the Court framed

#

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

  1. 1.Whether the respondent's adverse possession of the suit land could be terminated by the institution of an action by the appellant by way of a counterclaim seeking recovery of possession
  2. 2.Whether the respondent had been in twelve continuous and uninterrupted years of adverse possession of the suit land as against the appellant
  3. 3.Whether the learned judge erred in relying on Pugh v Heath and in failing to treat the appellant's counterclaim as an action to recover land under section 7 of the Limitation of Actions Act that stopped time from running

Key legal issues

#
01

Whether a counterclaim for recovery of land interrupts adverse possession

Holding

Yes - the filing of a counterclaim, like any suit for recovery of land, stops time from running under the Limitation of Actions Act

Reasoning

Relying on the Court's unanimous decision in Kiritu v Kabura and the passage from Cheshire's Modern Law of Real Property adopted in Githu v Ndeete, the Court held that time stops when the owner asserts his right by taking legal proceedings. A counterclaim has the same effect as a cross suit under Order VIII r 2 of the Civil Procedure Rules, so the appellant's 1979 counterclaim interrupted the respondent's adverse possession before twelve years had accrued.

p. 3
02

When the respondent's adverse possession began to run

Holding

Adverse possession could only begin when the sale agreement became void for want of Land Control Board consent, at the earliest December 1972; before that the respondent was at most a licensee

Reasoning

The respondent's occupation under the 1972 sale agreement was with the consent of the vendor, Ayub Nguyai 'B'. Possession only became adverse when the agreement failed to materialise upon lapse of the statutory consent period. Even measured from 1972, twelve years would not have elapsed before the 1979 counterclaim, so the respondent could not defeat it.

p. 3
03

Whether the trial judge erred in relying on Pugh v Heath

Holding

The judge erred by preferring counsel's submissions in Pugh v Heath over the actual holding, and failed to consider the interruptive effect of the counterclaim

Reasoning

Pugh v Heath concerned a mortgagee's right of possession after foreclosure, a different context. The judge relied on counsel's submissions rather than the judgment itself and did not determine when adverse possession began or consider the counterclaim as an interruption, leading the Court to set aside his decision.

p. 3

Legal principles established

#
  • The filing of a suit for recovery of land, including by way of counterclaim, stops time from running for the purposes of adverse possession under the Limitation of Actions Act
  • A counterclaim has the same effect as a cross suit and constitutes an assertion of the owner's right that interrupts the adverse possessor's time
  • An action to recover land may not be brought after the end of twelve years from the date on which the right of action accrued

Court orders

#
  1. 1.The judgment of the learned judge and its related decree are set aside
  2. 2.The appellant, as the registered proprietor of the suit land, shall have vacant possession of the suit land
  3. 3.The costs of this appeal and of the court below are awarded to the appellant

The bench

#

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

JG
majority

Wrote the judgment

AA
majority

Wrote the judgment

GP
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 920 of 1979
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (no specific constitutional/statutory provision cited in the judgment)

Relief refused

#

Respondent's claim to be entitled to the suit land by adverse possession

The respondent had not achieved twelve years of uninterrupted adverse possession before the appellant's counterclaim interrupted time

p. 4

Costs

The costs of this appeal and of the court below shall be to the appellant.

Quotable passages

#

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

The appellant's appeal succeeds, the judgment of the learned judge and its related decree are hereby set aside and it is hereby ordered that the appellant as the registered proprietor of the suit land, shall have vacant possession of the suit land.
p. 5Final orders - appeal allowed, judgment below set aside, vacant possession granted
it was held that the filing of a suit for recovery of land would stop time from running for the purpose of section 38 of the Limitation of Actions Act under which a person may claim to have become entitled to land by adverse possession
p. 3Filing suit stops time running under section 38
upon bringing his counterclaim, which has the same effect as a cross suit brought under Order VIII r 2 of the Civil Procedure Rules, the time of the respondent's adverse possession ceased to run against him
p. 3Counterclaim interrupts adverse possession
even if he had been in occupation of Ayub Nguyai "B"'s land as far back as 1967, he was no more than a licensee whose possession only became adverse when the sale agreement between him and Ayub Nguyai "B" did not materialise and he continued in occupation.
p. 3Possession under a sale agreement is not adverse
The costs of this appeal and of the court below shall be to the appellant.
p. 5Costs order

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (9)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Murathe v Gathimbi (Civil Appeal 49 of 1996) [1998] KECA 207 (KLR)", Case Analysis (1998). Civil Appeal No. 49 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/207/eng@1998-03-06

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