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Court of AppealPartially AllowedCivil Appeal 119 of 2005· [2009] KECA 32 (KLR)

Court of Appeal of Kenya v John Anderson Githinji

Court of Appeal of Kenya
11 December 2009
SBS.E.O. BosirePWP. N. WakiJOJ. W. Onyango Otieno
3,103 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled a man claiming land by adverse possession gets only the half he truly occupied, not the entire family parcel.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi (Bosire, Waki and Onyango Otieno, JJA) against the decision of Ransley J in HCCC No. 397 of 2001 (O.S), in which the respondent claimed the appellant's title to Kiambaa/Ruaka/T67 had been extinguished and that he had acquired title by adverse possession, alternatively that the appellant held the land in trust for him. The trial judge dismissed the trust claim but granted prayers based on adverse possession, with costs to the respondent. The appellant appealed on eleven grounds, including that the originating summons was defective for want of a supporting affidavit, that no adverse possession was proved, and that the judge gave contradictory dates for when possession became adverse. The Court of Appeal held the trust claim could not proceed by originating summons and, absent a cross-appeal, declined to pursue it. Applying its earlier decisions in Kasuve v Mwaani Investments and Mbugua Njuguna, and the English authorities Littledale v Liverpool College and Leigh v Jack, the court affirmed that adverse possession requires exclusive, open possession as of right for twelve years and that a change of registered ownership does not interrupt it. However, the court found that the respondent knew half the land belonged to the appellant and was therefore in adverse possession of only half the parcel. The appeal was allowed in part: the land was ordered partitioned into two equal parts, one registered in each brother's name, the respondent taking the portion on which his house stands. The appellant received half the costs of the appeal and of the superior court. The judgment of the superior court was varied accordingly.

Key legal issues

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01

Elements of adverse possession

Holding

The claimant must prove exclusive, open possession as of right without interruption for 12 years, either by dispossessing the owner or where the owner discontinues possession

Reasoning

The court applied its prior decisions Kasuve v Mwaani Investments and Mbugua Njuguna v Elijah Mburu Wanyoike, which in turn rested on Wanje v Saikwa and Githu v Ndete. The 12-year period runs from when possession becomes adverse, and a transfer of registered ownership does not interrupt continuous adverse possession.

p. 4
02

Whether possession of part only is adverse as to the whole

Holding

Possession is not adverse to the extent the occupier knows the land is not his; here the respondent knew half the land belonged to the appellant

Reasoning

The respondent's own affidavits and testimony showed he understood the land would be owned jointly and that half belonged to the appellant. The appellant's son and sister's sons lived on part of the land. Possession of that part was therefore permissive in origin and knowledge, defeating the claim of adverse possession over the whole parcel.

p. 5
03

Defective originating summons without supporting affidavit

Holding

The omission was not fatal because by consent the affidavits on record were to be considered and the suit proceeded by viva voce evidence

Reasoning

The originating summons lacked a supporting affidavit as expected under Order 36 rule 10, but the parties' consent order at directions provided that affidavits on record be considered, which cured the complaint that an affidavit to a withdrawn chamber summons was relied upon.

p. 5

Legal principles established

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  • A claimant must prove exclusive, open, peaceful and uninterrupted possession for 12 years to acquire title by adverse possession, and a change of ownership of registered land does not interrupt adverse possession
  • Where a person in occupation knows that his entitlement extends only to part of the land, his possession of the remaining part is not adverse

Court orders

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  1. 1.The land Kiambaa/Ruaka/T67 be partitioned into two equal parts
  2. 2.One part be registered in the appellant's name and the other part in the respondent's name
  3. 3.The respondent to take the part where his house is currently standing as at the date of the judgment
  4. 4.The appellant to have half the costs of the appeal and of the superior court
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 397 of 2001 (O.S)
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute (not expressly cited in the judgment)

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, "Court of Appeal of Kenya v John Anderson Githinji", Case Analysis (2009). Civil Appeal 119 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/32/eng@2009-12-11

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