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Court of AppealDismissedNot stated in the judgment

Lewa v Mwagandi (Civil Appeal 56 of 2014) [2015] KECA 532 (KLR)

Court of Appeal of Kenya
17 July 2015
UAUnidentified Judge of AppealWilliam OukoOukoKMK. M'Inoti
16,084 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~64 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that squatters can still lawfully acquire land through adverse possession after 12 years, so the Constitution does not protect landowners from losing untended property.

What this practically means

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Executive summary

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This is a unanimous judgment of the Court of Appeal at Malindi dismissing an appeal against the ruling of Angote, J. in the High Court, which had disallowed a preliminary objection attacking the constitutionality of the doctrine of adverse possession embodied in sections 7, 9, 13, 17, 37 and 38 of the Limitation of Actions Act. The appellant, the registered owner of the suit property, argued that because the Constitution of Kenya, 2010, unlike the repealed Constitution's section 75(6)(vi), contains no express recognition of limitation-of-actions laws as a permissible limitation of the right to property under Article 40, adverse possession now amounts to unconstitutional, arbitrary deprivation of property without compensation. Two judgments were delivered. The first (whose author's name is not printed in the file, and which Ouko and M'Inoti, JJA agreed with) traced comparative developments in the United Kingdom, the European Court of Human Rights (J.A. Pye), India and the United States, and held the doctrine constitutional. M'Inoti, JA, in a separate concurring judgment, tested the limitation of property rights by adverse possession against Article 24 and found it set by law, clear and specific, reasonable and justifiable in an open and democratic society, and not destructive of the core content of the right. He noted that post-2010 legislation (the Land Act and Land Registration Act, 2012) expressly recognises acquisition of title by prescription, and he invited legislative reform, including notice to the paper owner and possible compensation, but declined to declare the doctrine unconstitutional. The appeal was dismissed, the High Court ruling was affirmed, and each party was ordered to bear its own costs given the novelty of the question and the pendency of the originating summons below.

Questions the Court framed

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

  1. 1.Whether the doctrine of adverse possession as embodied in sections 7, 9, 13, 17, 37 and 38 of the Limitation of Actions Act is inconsistent with Article 40 of the Constitution of Kenya, 2010 and therefore unconstitutional
  2. 2.Whether the absence, in the current Constitution, of a provision equivalent to section 75(6)(vi) of the repealed Constitution means that the right to property can no longer be limited by laws on limitation of actions
  3. 3.Whether the limitation of the right to property effected by adverse possession is a permissible limitation under Article 24 of the Constitution, namely whether it is set by law, reasonable and justifiable in an open and democratic society, clear and specific, and does not derogate from the core content of the right
  4. 4.Whether the acquisition of land by adverse possession amounts to an arbitrary deprivation of property prohibited by Article 40(2) of the Constitution

Key legal issues

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01

Constitutionality of adverse possession under the Constitution of Kenya, 2010

Holding

The doctrine of adverse possession as legislated in the Limitation of Actions Act is constitutional; acquisition of title by adverse possession is not an arbitrary deprivation of property.

Reasoning

The Court held that the omission of a clause equivalent to section 75(6)(vi) of the former Constitution is not decisive, given the change in drafting style from a 'Bill of Exceptions' to a Constitution that leaves limitations to Parliament under Article 24. Parliament itself re-enacted recognition of adverse possession in sections 7(d) and 28(h) of the Land Act and Land Registration Act 2012. The procedural safeguards in Order 37 rule 7 and the Limitation of Actions Act (service on the registered owner, proof of nec vi, nec clam, nec precario possession) ensure due process, so the deprivation is not arbitrary.

p. 14
02

Whether the limitation of property rights by adverse possession passes the Article 24 test

Holding

The limitation is set by law (the Limitation of Actions Act), is clear and specific, is reasonable and justifiable in an open and democratic society, and does not derogate from the core content of the right to property.

Reasoning

Applying a global proportionality assessment, the Court identified legitimate purposes for the doctrine: avoiding stale claims, ensuring claims are determined within reasonable time, certainty of title, and encouraging productive use of a finite resource, consistent with Article 60 land policy principles. The landowner has a clear and lengthy opportunity to protect the property before title is extinguished. Comparative practice in commonwealth and civil law jurisdictions supports the reasonableness of the limitation.

p. 32
03

Constitutional interpretation: effect of omission of an express limitation clause

Holding

A right guaranteed by one provision and qualified by others must be read holistically and purposively; the presence or absence of a single clause from a previous Constitution is not decisive.

Reasoning

Relying on Article 259 and persuasive authority from Hong Kong, the Court held that the 2010 Constitution eschews cataloguing exceptions to rights, instead permitting limitations by legislation that satisfy Article 24. The right to property is not among the unlimitable rights in Article 25, leaving its protection within the precincts of allowable statutory limitation.

p. 19

Legal principles established

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  • The right to property under Article 40 is not absolute and may be legitimately limited by legislation satisfying the requirements of Article 24 of the Constitution.
  • The doctrine of adverse possession under the Limitation of Actions Act is constitutional and does not amount to arbitrary deprivation of property under Article 40(2) of the Constitution; it binds lower courts to reject constitutional challenges to the doctrine on this basis.
  • The absence in the current Constitution of a provision equivalent to section 75(6)(vi) of the repealed Constitution does not imply that adverse possession has been outlawed; the Constitution must be read holistically and purposively.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs; each party to bear own costs

The bench

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

UA
majority

Wrote the judgment

The first judgment in the file (paragraphs 1-22) reviews the history of adverse possession, considers comparative material and concludes that section 38 of the Limitation of Actions Act is not unconstitutional, dismissing the appeal with no order as to costs. The text does not print the name of this judgment's author; it closes by recording the concurrence of Ouko and M'Inoti, JJA.

As Ouko and M’Inoti, JJA agree, the order of the Court is that the appeal is dismissed with no order as to costs.p. 13
William Ouko
OukoJA
Currently serving
majority
KM
majority

Wrote the judgment

In a separate, concurring judgment, M'Inoti, JA subjects the limitation of the right to property by adverse possession to the Article 24 proportionality analysis. He holds that the absence of a provision equivalent to section 75(6)(vi) of the repealed Constitution does not render adverse possession unconstitutional, that the limitation is set by law, is clear and specific, is reasonable and justifiable in an open and democratic society, and does not derogate from the core content of the right. He agrees the appeal should be dismissed but makes no order on costs, and observes that legislative reform of the doctrine may be warranted.

The doctrine of adverse possession is neither an arbitrary nor an unconstitutional limitation of the right to property. I would accordingly dismiss this appeal, but make no orders on costs on account of its circumstances.p. 32
On appeal from
High Court of Kenya at Malindi
Originating Summons dated 1st April 2011 (also referred to in the judgment as taken out on 11th August 2011)
Jurisdiction invoked
Not expressly stated; the appeal lies to the Court of Appeal from a ruling of the High Court dismissing a preliminary objection (appellate jurisdiction under the Constitution/statute, provision not cited in the judgment)

Relief refused

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The appellant's prayer that section 38 of the Limitation of Actions Act be declared unconstitutional and that the High Court ruling dismissing the preliminary objection be set aside

The Court found the doctrine of adverse possession consistent with the Constitution and not an arbitrary deprivation of property

p. 32

Costs

Appeal dismissed with no order as to costs; each party to bear own costs, having regard to the novelty of the constitutional question and the fact that the originating summons is yet to be heard and determined.

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.

As Ouko and M’Inoti, JJA agree, the order of the Court is that the appeal is dismissed with no order as to costs.
p. 13Disposition - appeal dismissed
The doctrine of adverse possession is neither an arbitrary nor an unconstitutional limitation of the right to property. I would accordingly dismiss this appeal, but make no orders on costs on account of its circumstances.
p. 32Final orders and core holding
Because of the novelty of the point raised in the appeal and hearing in mind that the originating summons is yet to be heard and determined, each party to bear own costs.
p. 22Costs order
The process leading to acquisition of land by adverse possession is, accordingly not arbitrary and does not contravene Article 40(2) (a) of the Constitution, I so find.
p. 20No arbitrary deprivation
I would find the limitation to the right to property through the doctrine of adverse possession to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
p. 32Article 24 justification
the fact that the Constitution does not make provision recognizing the doctrine of adverse possession cannot per se imply that it has outlawed it.
p. 19Constitutional interpretation - omission of express clause

Issues in the judgment

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minor

Conflicting dates for the Originating Summons: it is described in one part of the judgment as dated 1st April 2011 and in another as taken out on 11th August 2011

minor

Conflicting dates for the High Court ruling: described as delivered on 31st July 2014 in one passage and as 'a considered ruling dated 14th July 2011' in another

minor

Conflicting parcel numbers for the suit property: Tezo/Roka/371 in one passage and Tezo/Roka/374 in others

material

The name of the judge who authored the first judgment in the file (paragraphs 1-22) is not printed in the judgment; it closes only by recording the concurrence of Ouko and M'Inoti, JJA

minor

Paragraph numbering in the judgment is inconsistent and repeats (two different sets of paragraphs numbered 18 to 28 and 29 to 40), which may complicate citation of 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 (25)

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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, "Lewa v Mwagandi (Civil Appeal 56 of 2014) [2015] KECA 532 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/532/eng@2015-07-17

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