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Court of AppealDismissedCivil Appeal No. 84 of 2013· [2015] KECA 188 (KLR)

Noordin v Karisa (Civil Appeal 26 of 2015) [2015] KECA 188 (KLR)

Court of Appeal of Kenya
4 December 2015
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,336 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that 21 years of open occupation extinguished a landowner's title, even though the occupier only raised adverse possession as a defence.

What this practically means

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Executive summary

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The appellant, registered proprietor of plot No.7729 Malindi, sued for eviction of the respondent, who claimed title by adverse possession, having been born on and continuously occupied the land. The High Court (Angote, J) dismissed the suit, holding that the appellant's title had been extinguished by the Limitation of Actions Act and that adverse possession could be pleaded by way of defence without a counter-claim. On appeal, the Court of Appeal (Asike-Makhandia, Ouko and M'inoti, JJ A) dismissed the appeal. It found the respondent occupied the land openly from 1990, building houses and planting trees, acts nec vi, nec clam, nec precario, so that by the suit's filing in 2012 the 12-year limitation period had long run against the appellant and her vendor; mere change of ownership did not interrupt adverse possession (Githu v Ndeete). On procedure, the Court expressly departed from Njuguna Ndatho v Masai Itumo, holding it 'no longer tenable', and followed Wabala v Okumu and Bayete Co. Ltd v Kosgey: a defendant sued for vacant possession may raise limitation/adverse possession by way of defence; Order 37 rule 7's originating-summons procedure applies only where the possessor applies to be registered as proprietor. Because the respondent pleaded the defence without a counter-claim, he could not be registered as proprietor, but the Court, invoking section 3(2) of the Appellate Jurisdiction Act, ordered the appellant to transfer the suit property to the respondent within 30 days, failing which the Deputy Registrar, High Court, Malindi would execute the transfer. The Court declined to condemn the appellant to pay costs of the appeal or below, effectively leaving each party to bear their own costs.

Key legal issues

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01

Accrual and interruption of limitation time

Holding

Time ran against the appellant and her predecessor from 1990 when the respondent built a house on the land; 21 years elapsed before suit, extinguishing the appellant's title under sections 7 and 17 of the Limitation of Actions Act.

Reasoning

The respondent was born on the land and built houses and planted trees there from 1990, acts inconsistent with the owner's enjoyment. Neither the appellant nor her vendor took any steps to interrupt time. The mere change of ownership did not interrupt adverse possession; the appellant never even stepped on the land.

p. 3
02

Procedure for raising adverse possession

Holding

Adverse possession may be pleaded as a defence without a counter-claim or originating summons; the originating-summons requirement in Order 37 rule 7 applies only where the possessor seeks registration as proprietor.

Reasoning

The Court departed from Njuguna Ndatho v Masai Itumo, holding that position no longer tenable, and followed Wabala v Okumu and Bayete Co. Ltd v Kosgey where adverse possession was granted although pleaded only by way of defence. The shift is dictated by substantive justice under Article 159 of the Constitution.

p. 5
03

Effect of pleading adverse possession only as a defence

Holding

A defendant who does not counter-claim cannot obtain registration as proprietor but the court may nonetheless make orders flowing from extinction of the plaintiff's title.

Reasoning

By electing to raise adverse possession only as a defence, the respondent denied himself the ability to apply for registration under section 38. However, invoking section 3(2) of the Appellate Jurisdiction Act, the Court ordered the appellant to transfer the property to the respondent, the Deputy Registrar to execute if she defaulted.

p. 6

Legal principles established

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  • A defence of adverse possession may properly be raised in a defence to an action for eviction, without a counter-claim or originating summons; Order 37 rule 7 requires originating summons only where the adverse possessor applies to be registered as proprietor.
  • A change of ownership of land occupied by a person in adverse possession does not stop or interrupt time running under the Limitation of Actions Act.
  • The claimant bears the onus of proving adverse possession nec vi, nec clam, nec precario irrespective of the procedure adopted.

Court orders

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  1. 1.Appeal dismissed
  2. 2.The appellant to transfer the suit property to the respondent at the latter's expense within 30 days, failing which the Deputy Registrar, High Court, Malindi to execute the transfer documents on the appellant's behalf
  3. 3.Appellant not condemned to pay costs of the appeal or of the court below

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 17
  • Limitation of Actions Actsection 38
  • Land Registration Act, 2012section 25(1)
  • Constitution of Kenya, 2010Article 159
  • Civil Procedure RulesOrder 37 rule 7
  • Appellate Jurisdiction Actsection 3(2)

Cases cited (9)

  • Kenyenga v Ombwori
    (2001) KLR 103
  • Githu v Ndeete
    [1984] KLR 776
  • Joseph Gahumi Kiritu v Lawrence Munyambu Kabura
    Civil Appeal No.20 of 1993
  • Littledale v Liverpool College
    (1900) 1 Ch. 19
  • Mariba v Mariba
    Civil Appeal No. 188 of 2002
  • Njuguna Ndatho v Masai Itumo & 2 others
    Civil Appeal No.231 of 1999
  • Wabala v Okumu
    [1997] LLR 609 (CAK)
  • Bayete Co. Ltd v Kosgey
    [1998] LLR 813
  • Teresa Wachika Gachira v Joseph Mwangi
    CA 325 of 2003
On appeal from
High Court of Kenya at Malindi
not stated
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act (Section 3(2) invoked in the orders)

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, "Noordin v Karisa (Civil Appeal 26 of 2015) [2015] KECA 188 (KLR)", Case Analysis (2015). Civil Appeal No. 84 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/188/eng@2015-12-04

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