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Court of AppealDismissedCivil Appeal No. 11 of 2014· [2015] KECA 728 (KLR)

Katana & 101 others v Bakshwein & another (Civil Appeal 11 of 2014) [2015] KECA 728 (KLR)

Court of Appeal of Kenya
24 March 2015
HOH. M. OkwenguASAsike-MakhandiaFSF. Sichale
7,448 words in judgment
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The bottom line

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The Court of Appeal ruled that long occupation doesn't create ownership if you entered with the owner's permission, and the landowners won with costs.

What this practically means

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Executive summary

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The appellants, initially 103 squatters on about 359.91 acres at Ganda, Malindi, claimed ownership of their respective plots by adverse possession under section 38 of the Limitation of Actions Act, and sought registration as proprietors in place of the respondents. The High Court (Meoli, J.) dismissed the claim and entered judgment for the respondents on their counterclaim for vacant possession and eviction, giving six months before the eviction order took effect. On appeal, the Court of Appeal restated the elements of adverse possession: registered land, open and exclusive possession adverse to the owner's title for over twelve years following dispossession or discontinuance. It held the appellants' entry was permissive, as tenants paying rent/Ijara to the respondents' deceased father, so time never ran adversely until his death in 1970, when they became trespassers. Thereafter the respondents persistently asserted their title through eviction attempts, arrests and prosecutions, civil proceedings, and use of the administration, interrupting possession and stopping time. The court rejected the argument that time ran during the sixteen years the earlier Mombasa O.S. was pending, holding that time stops running upon filing such a suit. The appellants also failed to specifically identify the portions claimed, and their O.S. lacked the mandatory certified extract of title, rendering it incompetent. The contention that the counterclaim was time-barred failed because limitation was never pleaded, contrary to Order 2 Rule 4(1). The appeal was dismissed with costs to the respondents, affirming the decision below.

Key legal issues

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01

Whether the appellants' entry into the suit premises was adverse to the respondents' title

Holding

The entry was permissive, by consent of the deceased as tenants paying rent/Ijara; time therefore did not run in the appellants' favour.

Reasoning

It was common ground that the appellants and their forefathers entered the land with the deceased's consent as tenants paying rent. Entry with consent is not adverse, since the claimant has not dispossessed the owner and possession is not illegal. Time could only begin when the tenants repudiated the owner's title, which occurred only after the deceased died in 1970 when they stopped paying rent.

p. 8
02

Whether the respondents' title was extinguished by twelve years of continuous adverse possession

Holding

The appellants' possession was neither peaceful, exclusive nor uninterrupted; the respondents persistently asserted their title through evictions, prosecutions, civil proceedings and the administration, stopping time.

Reasoning

Evidence showed repeated attempts to evict the appellants, arrests and successful criminal prosecutions, violent confrontations including death and serious injury, and the respondents' continued enjoyment of proprietary rights (grazing cattle, dip, water tank, structures). Where the owner asserts title through such acts, time for adverse possession stops running and possession is interrupted.

p. 9
03

Whether time ran in the appellants' favour during the sixteen years the Mombasa O.S. was pending

Holding

No; time stops running the moment a suit anchored on adverse possession is filed, and there was an uncontroverted order barring the respondents from evicting the appellants during its pendency.

Reasoning

The court characterised the appellants' alternative submission as spurious. Filing of the adverse possession suit itself stops time, and the respondents, being barred from evicting the appellants during its pendency and having counterclaimed for eviction, could not be expected to take the law into their own hands. The dismissal for want of prosecution did not revive the earlier accrued time already defeated by interruption.

p. 9
04

Whether the appellants identified the portions of land in their possession

Holding

The appellants failed to specifically identify or describe the portions, sizes and locations claimed from the larger premises, defeating the claim; the O.S. also lacked the mandatory certified extract of title.

Reasoning

Identification of the land possessed is integral to proving adverse possession. Witnesses claimed differing acreages without survey or clear definition, and the claim was amorphous. The old Order XXXVI Rule 3D(2) required a certified extract of title to be annexed to the supporting affidavit; its absence rendered the O.S. incompetent and liable to be struck out.

p. 9
05

Whether the counterclaim was statute-barred and should have been rejected

Holding

The limitation objection failed because it was never pleaded in a defence to the counterclaim and was raised only in final submissions, contrary to Order 2 Rule 4(1).

Reasoning

The counterclaim was filed with leave of court; the appellants were granted liberty to file a defence within 14 days but filed none, and the issue was never raised during witness examination. Order 2 Rule 4(1) mandatorily requires a plea of limitation by way of pleadings; raising it at submissions stage was an ambush, and a party is bound by their pleadings.

p. 10

Legal principles established

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  • Elements of adverse possession: the land must be registered in another's name, the claimant must be in open and exclusive possession adverse to the owner's title for over twelve years after dispossession or discontinuance of possession by the owner.
  • A claim of adverse possession cannot succeed where entry was with the owner's permission and remains so; time begins to run only when possession becomes adverse, e.g. where consent is terminated or the tenant repudiates the owner's title.
  • Acts by the registered owner asserting title, including eviction attempts and legal proceedings, stop time from running for adverse possession.
  • Identification of the specific land possessed is an integral part of proving adverse possession; a claimant must specifically identify or describe the portions, sizes and locations claimed.
  • A party is bound by their pleadings; a statutory defence such as limitation must be pleaded and cannot be raised for the first time in final submissions.
  • An originating summons for adverse possession must be supported by an affidavit to which a certified extract of title is annexed; failure renders the summons incompetent.
  • A first appellate court must re-appraise the evidence afresh, evaluate it and reach its own conclusions, while allowing for the trial court's advantage of seeing and hearing the witnesses.
  • Time stops running the moment a suit founded on adverse possession is filed, protecting the claimant's possession during its pendency.

Court orders

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  1. 1.Appeal dismissed with costs to the respondents
  2. 2.Judgment of the High Court dismissing the appellants' claim and entering judgment on the respondents' counterclaim affirmed

Authorities

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Legislation

  • Civil Procedure Actsection 3
  • Limitation of Actions Actsection 38
  • Limitation of Actions Actsection 13(1) and (2)
  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 37
  • Civil Procedure RulesOrder 2 Rule 4(1)
  • Civil Procedure Rules (old)Order XXXVI Rule 3D(2) and 3(D)
  • Court of Appeal RulesRule 29(1)(a)

Cases cited (17)

  • Kimani Ruchine & Anor vs Swift, Rutherford & Co. & Anor
  • Gatimu Kinguru v Muya Gathangi
    (1976-1980) 1 KLR 317
  • Public Institute Trustee & Mrs Beatrice Muthoni v Kamau Wandura
    (1982-88) eKLR 498
  • Joseph Gachumi Kivita v Lawrence Munyambu Kabura
    (1996) eKLR
  • Njuguna Ndatho v Masai Itumo & Anor
    (2002) eKLR
  • Peters v Sunday Post
    (1958) EA 429
  • Kiruga v Kiruga & Anor
    (1988) KLR 348
  • Wambugu v Njuguna
    (1983) KLR 172
  • Wanje v Saikwa (No.2)
    (1984) KLR 284
  • Kasuve v Mwaani Investments Ltd & 4 Others
    [2004] 1 KLR 184
  • Selle & Anor v Associated Motorboat Co. Ltd & Others
    (1968) E.A. 123
  • Ogol v Muriithi
    (1985) KLR 359
  • Seascapes Ltd v Development Finance Company of Kenya Ltd
    (2009) KLR 384
  • Samuel Miki Waweru v Jane Njeri Richu
    Civil Appeal No. 122 of 2001 (UR)
  • Jandu v Kirpal
    [1975] EA 225
  • Francis Gacharu Kariri v Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (UR)
  • Githu v Ndele
    [1984] KLR 776
On appeal from
High Court of Kenya at Malindi
H.C.C.C. No. 40 of 2008
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1)(a) cited); appeal from High Court original judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Katana & 101 others v Bakshwein & another (Civil Appeal 11 of 2014) [2015] KECA 728 (KLR)", Case Analysis (2015). Civil Appeal No. 11 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/728/eng@2015-03-24

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