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Court of AppealDismissedCivil Appeal No. 75 of 2008· [2015] KECA 771 (KLR)

Jaswantkumarba Benesingh Jethwa v Postal Corporation of Kenya [2015] KECA 771 (KLR)

Court of Appeal of Kenya
26 March 2015
3,656 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a buyer who pays in full and occupies land openly for 12 years can claim ownership through adverse possession.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Githinji, Mwilu and Gatembu Kairu, JJ.A) dismissed this appeal against a High Court judgment declaring the Postal Corporation of Kenya entitled to LR No. Nakuru Municipality Block 5/4 by adverse possession. The respondent, successor to EAP&TC and KP&TC, claimed under sections 7, 17, 37 and 38(1) of the Limitation of Actions Act by originating summons. Two issues arose. First, the appellant argued the originating summons should not have been determined summarily without oral evidence. The Court held that counsel had consented to determination by affidavits and submissions after the affidavits were on file, that the complaint was an afterthought, and that where rules mandate an originating summons the court cannot dismiss a claim merely because complex questions emerge; its only power is to order continuation as if begun by plaint. Second, on adverse possession, the Court applied Wambugu v Njuguna and Public Trustee v Wanduru, distinguishing a purchaser in possession pending completion from one who has paid the full price and taken possession, whose possession is adverse from the date of taking possession. Evidence showed the respondent took possession in 1974 as a purchaser who had paid the whole purchase price, built the Nakuru General Post Office, and paid rates openly and continuously for over 12 years. The charge to Barclays Bank and the 1999 letter seeking to complete the transfer were not acts of dispossession. The Court declined to entertain a novel submission that government cannot acquire land by adverse possession, raised for the first time on appeal without full argument. The High Court judgment was affirmed and the appeal dismissed with costs to the respondent.

Key legal issues

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01

Whether the originating summons for adverse possession could be determined without oral evidence

Holding

No. Counsel consented to determination by affidavits and submissions; the appellant did not specify issues requiring oral evidence nor demonstrate injustice.

Reasoning

Directions were taken after both the replying and further affidavits were filed, and counsel for the appellant agreed on 9 February 2006 that the OS be determined by affidavits and submissions. The later complaint that oral evidence was needed, without specifying the contested issues or showing prejudice, was an afterthought. The court was entitled to determine the dispute per the directions given with consent of counsel.

p. 4
02

Whether a claim for adverse possession raising complex issues may be dismissed and converted into an ordinary suit

Holding

No. Where the rules mandate an originating summons, the court's only power is to order continuation as if begun by plaint.

Reasoning

Order XXXVI rule 3D (now Order 37 rule 7(1)) required adverse possession claims to be brought by OS. Rule 10 (now rule 19) is a general, all-encompassing rule permitting conversion to a plaint, intended to save parties expense. The authorities cited by the appellant were distinguishable as they did not deal with adverse possession applications.

p. 4
03

When time began running for adverse possession where the purchaser paid the full purchase price

Holding

The respondent took possession in 1974 as a purchaser who had paid the whole purchase price; its possession was adverse from the time it took possession.

Reasoning

Documents showed the 1973 sale, receipt of the balance of purchase price in April 1974, and entitlement to rent from January 1974. Following Wambugu v Njuguna and Public Trustee v Wanduru, a purchaser in possession after paying the full price is not there with licence; possession is adverse from taking possession. Over 12 years of open, continuous, notorious occupation followed, and the charge to Barclays Bank and the 1999 letter were not acts of dispossession.

p. 6
04

Whether the respondent, being government, can acquire land by adverse possession

Holding

The court declined to determine the point, not having heard full arguments, as it was raised for the first time on appeal.

Reasoning

The novel submission that government has a radical title and cannot acquire land by adverse possession was not raised in the replying affidavit, in the High Court submissions, nor in the grounds of appeal or written submissions. Although a jurisdictional point may be raised for the first time on appeal, the court had not heard full arguments and declined to express a view.

p. 6

Legal principles established

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  • Where the rules stipulate that a claim must be brought by originating summons, the court cannot dismiss the claim merely because it raises complex questions of fact and law; its only power is to order continuation as if begun by plaint.
  • Where a purchaser pays the full purchase price and is then put in possession, his possession becomes adverse to the vendor from the time he took possession.
  • A letter seeking to complete an outstanding transfer does not amount to an act of dispossession or acknowledgement of the vendor's proprietary interest.
  • Registration or change of registration of title does not stop time running for adverse possession, and registration under the RLA was subject to rights acquired under the Limitation of Actions Act.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22section 7
  • Limitation of Actions Act, Cap 22section 17
  • Limitation of Actions Act, Cap 22section 37
  • Limitation of Actions Act, Cap 22section 38(1)
  • Limitation of Actions Act, Cap 22section 38(2)
  • Limitation of Actions Act, Cap 22section 2
  • Civil Procedure RulesOrder XXXVI Rule 3D
  • Civil Procedure RulesOrder XXXVI Rule 10(1)
  • Civil Procedure RulesOrder XXXVI Rule 10(3)
  • Civil Procedure Rules (2010)Order 37 rule 7(1)
  • Civil Procedure Rules (2010)Order 37 rule 19(1)
  • Civil Procedure Rules (2010)Order 37 rule 19(3)
  • Registered Land Act (repealed)section 30(f)
  • Registered Land Act (repealed)section 12
  • Evidence Actsection 119
  • Court of Appeal Rules 2010Rule 95(1)
  • Land Registration Act 2012Act No. 3 of 2012
  • Constitution of Kenyanull

Cases cited (11)

  • Kibutiri v Kibutiri
    [1983] 1 KAR 60
  • Kulsumbai v Abdul Hussein
    [1957] EA 699
  • Wakf Commissioners v Mwijabu
    [1984] 2 KAR 12
  • Hosea v. Njiru
    [1974] EA 526
  • Kairu v Gicheru
    [1988] 2 KAR 111
  • Wambugu v Njuguna
    [1983] KLR 172
  • Public Trustees v. Wanduru
    [1984] KLR 314
  • Githu v Ndeete
    1984 KLR 776
  • Wanje v Saikwa (No. 2)
    [1984] KLR 284
  • Mungania v. Imanyara
    [1985] KLR 1
  • Kenya Commercial Bank Limited vs. Osebe
    [1982] 1 KAR 48
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 168 of 2003 (O.S)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules against the judgment and decree of the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Jaswantkumarba Benesingh Jethwa v Postal Corporation of Kenya [2015] KECA 771 (KLR)", Case Analysis (2015). Civil Appeal No. 75 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/771/eng@2015-03-26

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