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Court of AppealDismissedCivil Appeal No. 87 of 2015· [2017] KECA 6 (KLR)

Albert Fred Ekirapa v Nyongesa Sirari & 5 others [2017] KECA 6 (KLR)

Court of Appeal
28 September 2017
GKG. B. M. KariukiDMD. K. MusingaSKS. Gatembu Kairu
3,375 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a land buyer who stays on a property long enough after a sale fails can win full ownership through adverse possession.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu from the judgment of the Environment and Land Court at Busia (S. M. Kibunja, J) delivered on 28 May 2015, which dismissed the appellant's suit for eviction of the respondents from North Teso/Angurai/213 and allowed the respondents' counterclaim by cancelling the appellant's title and directing registration of the 1st respondent as proprietor, having acquired title by adverse possession. The appellant, who purchased the property in 2011 from Rosela Akisa Odama, argued that the respondents had not proved adverse possession, that a claim of purchase was incompatible with adverse possession, and that an eviction order obtained in 2010 interrupted the possession. In a single judgment of the court, the Court of Appeal applied the Selle standard of review and the adverse-possession principles in Mbira v Gachuhi, Wambugu v Njuguna and Wanje v Saikwa (No. 2). It held that the 1st respondent bought the entire property from the registered owner, Cornelius Omuse, in 1970 and took possession; that occupation until 1996 was consensual and thus not adverse; that the transaction became void in March 1997 under Section 6 of the Land Control Act for want of consent; and that possession became adverse from April 1997, crystallising by April 2009. The appellant's 2011 title was therefore subject to the accrued right of the adverse possessor. The appeal was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the 1st respondent acquired title to the suit property by adverse possession

Holding

Yes. He purchased the property from the registered owner in 1970 and took possession; occupation until 1996 was with consent; the sale became void in March 1997 under the Land Control Act for want of consent, whereafter possession became adverse; twelve years expired by April 2009, before the appellant's 2011 purchase, so the appellant took subject to the adverse possessor's right.

Reasoning

The court applied the standard of review on a first appeal and the principles of adverse possession from Mbira v Gachuhi, Wambugu v Njuguna and Wanje v Saikwa (No. 2). Because the transaction was void under Section 6 of the Land Control Act, the vendor retained title while the purchaser remained in possession; possession thereafter became hostile to the registered owner. Time ran from April 1997 and crystallised in April 2009, defeating the vendor's and any successor's right of recovery.

p. 2
02

Whether purchase and simultaneous adverse occupation are incompatible, and the effect of an interim eviction order on continuity of possession

Holding

They are not incompatible; a purchaser in possession whose transaction is void under the Land Control Act holds adversely. The brief eviction in February 2011 did not interrupt possession since the order was set aside and the respondent promptly returned.

Reasoning

The court relied on Kairu v Gacheru (cited by the respondents) for the proposition that transfer of ownership does not affect an accrued adverse-possession right, and found as a fact that possession continued save for a short interlude after eviction, following which the 1st respondent returned once the order was set aside. Interruption before twelve years would defeat the claim, but here the eviction was brief and the order set aside.

p. 4

Legal principles established

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  • Possession of land with the consent of the owner is not adverse possession; time begins to run only when possession becomes adverse, and title so acquired binds purchasers from the registered owner
  • A transferee of registered land takes subject to the accrued right of an adverse possessor whose title has crystallised before the transfer

Court orders

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

Authorities

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Legislation

  • Limitation of Actions ActSection 17
  • Land Control ActSection 6

Cases cited (7)

  • Kairu vs. Gacheru
    (1988) 2 KAR 111
  • Selle v. Associated Motor Boat Company
    [1968] E.A. 123
  • Mbira v. Gachuhi
    (2002) 1 EALR 137
  • Wambugu vs Njuguna
    [1983] KLR 172
  • Mwanasokoni vs. Kenya Bus Services Ltd
    [1985] KLR 931
  • Ndiema Samburi Soti vs. Elvis Kimtai Chepkess
    Eldoret Civil Appeal No. 136 of 2005
  • Wanje vs. Saikwa (No.2)
    [1984] KLR 284
On appeal from
Environment and Land Court
Busia H.C. ELC No. 17 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Act (as of right against the judgment of the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Albert Fred Ekirapa v Nyongesa Sirari & 5 others [2017] KECA 6 (KLR)", Case Analysis (2017). Civil Appeal No. 87 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/6/eng@2017-09-28

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