Ndorongo Gatheru & another v Norman Kariuki & 30 others [2017] KECA 451 (KLR)
The bottom line
#Kenya's Court of Appeal cancelled a High Court award of seven acres, ruling that long occupation alone does not prove an adverse possession claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents proved adverse possession of the suit land for the statutory period
The respondents failed to prove adverse possession; of 28 claimants only 4 testified, none knew the parcel number or owner, they gave inconsistent estimates of the area occupied, and they provided no evidence of steps taken to acquire the land
The burden lay on the respondents to prove every element of adverse possession on a preponderance of evidence. Only four of 28 claimants testified; their evidence was inconsistent on the size of the occupation (2½ acres versus 7 acres), they did not know the parcel number or the owner, claimed developments without proof, and occupied houses built by the settler. They only moved to court when threatened with eviction in 1992. Their possession was therefore not shown to be adverse, exclusive or for the requisite period.
Whether a claim for adverse possession could lie against the Government after the suit land vested in it bona vacantia
Upon Pacon Limited being struck off, the suit land vested in the Government bona vacantia under section 340 of the repealed Companies Act and section 8 of the Government Land Act; thereafter no claim of adverse possession could be advanced, the court concluding the suit land belongs to the Government
Section 340 of the repealed Companies Act deems property of a dissolved company to be bona vacantia and to belong to the Government. Section 41 of the Limitation of Actions Act bars acquisition of Government land by limitation. Since the register showed the suit land vested in the Government on 6th June 1989, no adverse possession claim could be maintained against it, and the latest register entry confirmed Government ownership.
The relationship between LR No. 8569/5 and LR No. 14847 and against which title time ran
There was no evidence that LR No. 14847 was created in place of LR No. 8569/5 or any of its sub-divisions; the parties and the trial court failed to unravel this puzzle, making it impossible to identify the title against which limitation ran
The appellants persistently claimed LR No. 8569/5 as purchasers yet disowned it in favour of LR No. 14847, granted barely a month after the bona vacantia vesting. The register showed LR No. 8569/5 unchanged since 1989, and the Commissioner of Lands dealt with it as late as 2009. Any suggestion that LR No. 14847 replaced LR No. 8569/5 would be a fraud. The trial court also failed to visit the land to resolve these puzzles.
Adequacy of the trial court's judgment and recording of evidence
The trial Judge's judgment was confusing and startling regarding which title the respondents were entitled to, and her longhand notes were incoherent, undermining the integrity of appellate review
The trial record, taken in longhand, contained incomplete sentences and was incoherent and confusing, taking the Court considerable time to decode. The judgment itself contained contradictory conclusions about which parcel the respondents occupied and against whom the claim was made, making it impossible to discern the basis for awarding 7 acres when the claim itself had been found vague.
Legal principles established
#- A claimant for adverse possession bears the burden of proving, on a preponderance of evidence, actual, open, peaceful, uninterrupted, notorious and exclusive possession without the owner's permission, force or colour of right, for at least 12 years
- Adverse possession must be proved as a fact and cannot be presumed from mere exclusive possession, however long
- No claim of adverse possession lies against Government land; adverse possession cannot run against property that has vested in the Government bona vacantia
- On a first appeal the court must re-evaluate the evidence on the record to determine whether there was a basis for the conclusions reached by the trial Judge
- Where numerous claimants sue individually, each must prove their own claim; without evidence from most claimants, the veracity of their claims cannot be ascertained and the claim fails
- Trial courts must record evidence accurately and coherently, as trial notes form the bedrock of appellate review
Court orders
#- 1.The appeal is allowed by setting aside the decree of the High Court rendered on 26th June, 2008 awarding seven acres of the suit land to the respondents
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 2794 of 1995 (OS)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution and Appellate Jurisdiction Act); the judgment does not expressly invoke a specific provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndorongo Gatheru & another v Norman Kariuki & 30 others [2017] KECA 451 (KLR)", Case Analysis (2017). Civil Appeal No. 8 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/451/eng@2017-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.