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Court of AppealDismissedCivil Appeal No. 28 of 2014· [2015] KECA 952 (KLR)

Titus Kigoro Munyi v Peter Mburu Kimani

Court of Appeal
24 February 2015
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
5,050 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 dismissed a land claim because 12 years of adverse possession were not proved against the registered owner.

What this practically means

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Executive summary

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The appellant filed an Originating Summons in 2010 claiming title to Land Parcel No. Mbeti/Gachoka/473 by adverse possession, asserting occupation since 1970 under a sale by members of the Kamuvia Clan before land adjudication. The High Court at Kerugoya (Olao, J.) dismissed the claim, holding that adverse possession must be open, notorious and to the knowledge of the registered owner, and that the respondent only learned of the appellant's occupation in 2004 or 2010, so the twelve-year period had not run by March 2010. On appeal, the Court of Appeal (Visram, Koome & Otieno-Odek, JJ.A.) re-assessed the evidence as a first appeal. It held that actual or constructive knowledge of the adverse possession by the registered proprietor must be proved, and declined to disturb the trial court's finding that such knowledge existed only from 2004 or 2010. It further held that the appellant's occupation, having been obtained from PW1 - who was never the registered proprietor and had no alienable title during adjudication - was permissive under a sale agreement, not adverse. Time could not run against the respondent before his registration in 1978. The Court also declined to determine any equitable or overriding interest because that issue was neither pleaded nor canvassed below, the Court having no original jurisdiction. The grounds on joint tenancy and the non-joinder of Tabitha Muthoni's estate were held immaterial as they did not affect the computation of time. The appeal was dismissed with costs.

Key legal issues

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01

Whether knowledge of adverse possession by the registered proprietor is a requirement

Holding

Actual or constructive knowledge by the registered proprietor of the third party's adverse possession must be proved; the trial court's finding that such knowledge existed only from 2004 or 2010 was not disturbed.

Reasoning

The Court adopted Kneller J's dictum in Kimani Ruchire v Swift Rutherfords, approved by this Court in Francis Gicharu Kariri v Peter Njoroge Mairu, that the claimant must show the owner had knowledge or the means of knowing of the possession. The appellant's own testimony was that he never saw the respondent until 25th May 2010, supporting the inference of no earlier actual knowledge.

p. 7
02

Whether possession under a sale agreement with a non-proprietor is adverse

Holding

Possession pursuant to a sale agreement with PW1, who had no registrable title, was permissive and not adverse; the appellant was treated as a bona fide purchaser for value holding under the vendor's permission.

Reasoning

PW1 was never the registered proprietor; the land was under adjudication and demarcation and PW1 had no title enabling him to alienate it. The appellant's continued entry and possession was with PW1's permission qua vendor, so the occupation was not adverse under the nec vi, nec clam, nec precario maxim.

p. 6
03

From when does time run against the registered proprietor

Holding

Time for adverse possession could not run against the respondent before 1978 when he was registered, as he had no proprietary interest before then.

Reasoning

Following Francis Gitonga Macharia v Muiruri Waithaka, the limitation period starts running only after registration of the land in the respondent's name. However, under Section 7 of the Limitation of Actions Act, prescription affects not only present title holders but their predecessors.

p. 6
04

Joint tenancy/tenancy in common and non-joinder of Tabitha Muthoni's estate

Holding

The grounds on joint tenancy and tenancy in common were immaterial as they did not affect the computation of time or the ratio of the trial court's decision.

Reasoning

The Court found these grounds did not go to the ratio decidendi of the trial court's decision, which turned on knowledge and computation of time, so the joint tenancy/survivorship arguments and the non-joinder complaint did not affect the outcome.

p. 8

Legal principles established

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  • In a claim for adverse possession, actual or constructive knowledge of the adverse possession by the registered proprietor must be proved.
  • Time for adverse possession cannot run against a person who had no proprietary interest in the property; the limitation period starts running after registration of the land in the name of the respondent.
  • Occupation derived from a person other than the registered proprietor, under permission or a sale agreement, is not adverse possession.
  • An appellate court cannot determine an issue that was neither pleaded nor canvassed before the trial court.

Court orders

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  1. 1.Appeal dismissed with costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 18
  • Limitation of Actions ActSection 20(1)

Cases cited (19)

  • Kimani Ruchine & another v Swift Rutherford & Co. Ltd. & Another
    (1980) KLR 10

    Elements of adverse possession: nec vi, nec clam, nec precario; possession must be open, notorious and to the knowledge of the owner.

  • Kasuve v Mwami Investment Ltd.
    (2004) KLR 184

    Joint tenancy presumption and right of survivorship (jus accrescendi) - cited by appellant's counsel.

  • Selle v Associated Motor Boat Co.
    [1968] EA 123

    Duty of a first appellate court to analyze and re-assess the evidence and reach its own conclusions.

  • Jabane v Olenja
    [1986] KLR 661, 664

    Appellate court will not lightly differ from trial judge's findings of fact.

  • Ephantus Mwangi v Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278

    Interference with findings of fact only if based on no evidence.

  • Mwanasokoni v Kenya Bus Services
    (1982-88) 1 KAR 870

    Same principle on interference with findings of fact.

  • Francis Gicharu Kariri v Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)

    Approved Kimani Ruchire on the knowledge requirement in adverse possession.

  • James Mwangi & Others v Mukinye Enterprises Ltd.
    High Court Civil Case No. 3912 of 1986

    Claimant must show clear possession, lack of owner's consent and uninterrupted occupation for over 12 years.

  • Benjamin Kamau Murima & Others v Gladys Njeri
    Civil Appeal No. 213 of 1996

    Occupation derived from the proprietor by permission or agreement is not adverse.

  • Wellis' Cayton Bay Holiday Camp Ltd. v Shell Mex & BP Ltd.
    (1975) QB 94

    Entry and use of unoccupied land is ascribed to implied licence of the true owner; not adverse possession.

  • Mwinyi Hamis Ali v Attorney General and Philemon Mwaisaka Wanaka
    Civil Appeal No. 125 of 1997

    Adverse possession does not apply where possession is by consent.

  • Wambugu v Njuguna
    (1983) KLR 172

    Possession under leave and licence pursuant to a valid agreement becomes adverse when the licence is determined.

  • Public Trustee v Wanduru
    (1984) KLR 314 at 319

    Adverse possession calculable from date of payment of purchase price where purchaser takes possession.

  • Francis Gitonga Macharia v Muiruri Waithaka
    Civil Appeal No. 110 of 1997

    Limitation period for adverse possession starts running only after registration of the land in the respondent's name.

  • Peter Thuo Kairu v Kuria Gacheru
    (1988) 2 KLR 111

    Law of prescription affects present holders of title and their predecessors.

  • Ithongo v Thindiu
    (1981) KLR 197

    Right to land extinguished after statutory period although owner unaware of adverse possession; citing Rains v Buxton.

  • Rains v Buxton
    (1980) 14 Ch D 537

    Owner's ignorance of his right or its infringement does not prevent operation of the statute.

  • Maweu v Liu Ranching & Farming Cooperative Society Ltd.
    1985 KLR 430 at 434

    Buyer of land without knowing who is in possession risks his title; failure to inspect for twelve years.

  • Mwangi & Another v Mwangi
    (1986) KLR 328

    Rights of a person in possession or occupation of land are equitable rights binding on the land.

On appeal from
High Court of Kenya at Kerugoya
H.C. E.L.C. No. 63 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under its appellate jurisdiction (no specific constitutional/statutory provision cited)

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, "Titus Kigoro Munyi v Peter Mburu Kimani", Case Analysis (2015). Civil Appeal No. 28 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/952/eng@2015-02-24

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