Lazaro Kabebe v Ndege Makau & another [2017] KECA 602 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a landowner's demand for land back, or suing over it, resets the 12-year adverse possession clock.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant established adverse possession of the whole 5.4 acres
No - adverse possession was proved only in respect of the 2.5 acres retained by the 1st respondent; the 3 acres sold to the 2nd respondent were subject to interruption of possession in 1977 and again in 1988, so only about 10 years of uninterrupted possession had elapsed when the 1999 suit was filed
The court found that in 1977 the 1st respondent demanded the entire suit land and sold 3 acres to the 2nd respondent, interrupting possession. In 1988 the 2nd respondent, as registered owner, filed SRMCC No 5 of 1988 claiming his portion, which was decided in his favour before the Land Disputes Tribunal. The present suit filed in June 1999 came only about 10 years after the 1988 interruption, short of the 12-year period. Citing Githu v Ndeete, the court held that legal proceedings effectively stop time running under the Limitation of Actions Act.
The duty of a first appellate court on facts
A first appellate court must re-evaluate the evidence and reach its own conclusions, but must make due allowance for not having seen or heard the witnesses, and should exercise its jurisdiction to disturb factual findings with caution
Relying on Selle v Associated Motor Boat Company Ltd, Williamson Diamonds Ltd v Brown, Peters v Sunday Post and Kiruga v Kiruga, the court restated that an appellate court has jurisdiction to review the evidence, but it is a strong thing to differ from the trial judge's findings of fact; where a decision is equally open either way, the trial judge's advantage of seeing and hearing witnesses is of paramount importance.
Whether the trial Judge erred in failing to determine all agreed issues
No - once the court found the appellant had proved adverse possession only of the 2.5 acres and not the 3 acres, that finding disposed of the entire suit and the remaining issues became tangential or peripheral
The court held that the dispositive finding on adverse possession meant the Judge's failure to determine the other issues, including section 91(1) of the Civil Procedure Act, could not have affected the outcome. The appellate court likewise declined to determine those issues for purposes of the appeal.
Legal principles established
#- Time under the Limitation of Actions Act ceases to run when the owner takes legal proceedings or makes an effective entry into the land, thereby interrupting adverse possession
- An appellate court will not interfere with a trial judge's factual findings merely because it might have reached a different conclusion; it may do so only where there is no evidence to support the finding or the judge is plainly wrong
- Title by adverse possession can be acquired under the Limitation of Actions Act to a part only of the parcel to which the owner holds title
Court orders
#- 1.Appeal dismissed
- 2.No orders as to costs (respondents did not appear)
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1222 of 1999
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 102(2) invoked for hearing in respondents' absence); appeal from High Court judgment in an adverse possession claim under sections 37 and 38 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lucy Sharon Mwenda v Susan Kathure Marete (Environment & Land Case 38 of 2016) [2017] KEELC 784 (KLR)[2017] KEELC 784 (KLR)6 Dec 2017
- Lucy Sharon Mwenda v Susan Kathure Marete [2017] KEELC 378 (KLR)[2017] KEELC 378 (KLR)6 Dec 2017
Cite this brief
#Cite this brief
Caselaw, "Lazaro Kabebe v Ndege Makau & another [2017] KECA 602 (KLR)", Case Analysis (2017). Civil Appeal No 335 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/602/eng@2017-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.