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Court of AppealPartially AllowedCivil Appeal No. 85 of 2015· [2017] KECA 632 (KLR)

Kilimo Shutu & 6 others v Godfrey Karume [2017] KECA 632 (KLR)

Court of Appeal
31 March 2017
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
5,066 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that land occupied openly for over 12 years without the owner reclaiming it belongs to the occupier, even against a registered owner.

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 Malindi against the judgment of Angote, J in H.C. ELC Civil Case No. 30 of 2009, in which the respondent, Godfrey Karume, the registered proprietor of parcel LR. No. 4161 Malindi, had obtained a declaration of ownership and eviction orders against members of the family of Charo Shutu Masha and their purchasers. The appellants claimed to be entitled to the land by adverse possession, having occupied it for decades as the family of the late Chief Charo Shutu Masha. The Court of Appeal, composed of Makhandia, Ouko and M'inoti, JJ.A., in a single unanimous judgment, held that the learned Judge had failed to adequately evaluate the evidence. Critically, the Court rejected the trial judge's finding that time for adverse possession began to run only upon registration in 2004, holding instead that the respondent became the lawful owner on 1st February 1986 when grant No. 37527 issued, a letter of allotment not being evidence of title. The Court found from extensive correspondence that the Shutu family had occupied the land long before 2003, when the respondent first sought to recover it, far beyond the twelve-year period prescribed by section 7 of the Limitation of Actions Act. The respondent was permanently barred from suit and his title was extinguished under section 17. The 1st, 2nd and 3rd appellants proved actual, exclusive, continuous, hostile, open and notorious possession; the 4th to 7th appellants' claims succeeded only as purchasers dependent on those titles. The appeal was allowed with costs and, pursuant to section 3(2) of the Appellate Jurisdiction Act as read with section 38 of the Limitation of Actions Act, the appellants were ordered to be registered as proprietors of the portions they occupy.

Key legal issues

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01

Whether adverse possession ran against the respondent from 1986 (date of grant) rather than 2004 (registration in his name)

Holding

The trial judge erred in holding that time ran only from registration in 2004; the respondent became the lawful owner on 1st February 1986 when grant No. 37527 issued, so the limitation period ran from that date

Reasoning

A letter of allotment is not proof of title; title arises on issuance of the grant. The respondent held a grant from 1st February 1986, not merely an allotment letter. The first three appellants had occupied the land for 17 years by the time he first attempted recovery in 2003, far exceeding the 12-year statutory period under section 7. His title was accordingly extinguished under section 17.

p. 6
02

Whether the respondent took steps to recover the suit property within 12 years

Holding

The respondent took no steps to recover the property until 2003, well beyond 12 years from 1986; he was permanently barred under section 7 and his title was extinguished under section 17

Reasoning

The court reviewed the correspondence from 1989 to 2007, which concerned the Shutu family and never referenced the respondent. His first recovery efforts were complaints to the District Commissioner and meetings in August 2003, individual notices in 2006, and the 2009 suit. He could not assert he had fenced and farmed the land, as his 2003 letter to the District Surveyor seeking help to establish beacons 'to facilitate me to fence my plot' betrayed that claim.

p. 7
03

Whether the 1st, 2nd and 3rd appellants proved the elements of adverse possession

Holding

They proved actual, exclusive, continuous, hostile, open and notorious possession, including acts of ownership such as subdividing and selling parts of the land

Reasoning

Evidence including letters from the Town Clerk (1989), Provincial Commissioner (1994), District Commissioner (1996) and area MP (2007) established the family's occupation predating 2003 and going back decades. The trial judge's contrary finding was based on a failure to adequately evaluate the evidence. The 4th to 7th appellants' purchaser claims were dependent on and sustained by the first three appellants' titles.

p. 7
04

Whether the trial judge adequately evaluated the evidence as a first appellate duty requires

Holding

The learned Judge failed to adequately evaluate the evidence, arriving at a wrong conclusion

Reasoning

The judge ignored two earlier rulings by Omondi, J finding on affidavit evidence and photographs that the appellants had been on the land longer than the respondent claimed, and no report of the site visit of 14th June 2013 was on record. The Court of Appeal, re-evaluating the documentary and oral evidence itself, reached the opposite conclusion on the statutory period.

p. 8

Legal principles established

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  • A letter of allotment is not evidence of title; time for adverse possession does not run against an allottee until a grant/title document issues
  • Elements of adverse possession must be actual, exclusive, continuous, open, notorious and hostile to the true owner's title
  • A claim of adverse possession against unregistered land is misplaced and no order can issue in favour of the adverse possessor
  • On a first appeal, the appellate court will not lightly depart from trial court findings of fact unless based on no evidence, misapprehension of evidence, or wrong principles

Court orders

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  1. 1.Appeal allowed with costs
  2. 2.Pursuant to section 3(2) of the Appellate Jurisdiction Act as read with section 38 of the Limitation of Actions Act, the appellants be registered as the proprietors of the portions of the suit property which they occupy

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 37
  • Limitation of Actions Actsection 38
  • Limitation of Actions Actsection 17
  • Limitation of Actions Actsection 41(a)(ii)
  • Appellate Jurisdiction Actsection 3(2)
  • Registration of Titles Act (repealed)sections 21(2) and 32(1)
  • Court of Appeal Rulesrule 77
  • Court of Appeal Rulesrule 86

Cases cited (7)

  • Mtana Lewa v Kahindi Ngala Mwagandi
    Civil Appeal No. 56 of 2014
  • Wambugu v Njuguna
    (1983) KLR 172
  • Jabane v Olenja
    [1986] KLR 661
  • Training Institute v Agnes Nyavu Charo & 106 Others
    Mombasa Civil Appeal No. 286 of 2010
  • John Mukora Wachihi & Others v Minister For Lands & Others
    High Court Petition No. 82 of 2010
  • Wreck Motors Enterprises v The Commissioner of Lands and 3 Others
    NAI. Civil Appeal No. 71 of 1997
  • Joseph Arap Ng'ok v Justice Moijo Ole Keiwua
    NAI Civil Application No. 60 of 1997
On appeal from
High Court of Kenya at Malindi
H.C. ELC Civil Case No. 30 of 2009
Jurisdiction invoked
First appeal under the Court of Appeal Rules; orders issued under section 3(2) of the Appellate Jurisdiction Act as read with section 38 of the Limitation of Actions Act

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, "Kilimo Shutu & 6 others v Godfrey Karume [2017] KECA 632 (KLR)", Case Analysis (2017). Civil Appeal No. 85 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/632/eng@2017-03-31

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