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Court of AppealDismissedNot stated in the judgment as provided (Court of Appeal, Nairobi)

Kiarie & 2 others v Magera (Civil Appeal 326 of 2017) [2018] KECA 467 (KLR)

Court of Appeal of Kenya
13 July 2018
PWP. N. WakiASAsike-MakhandiaDMD. K. Musinga
4,290 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that land buyers with valid titles can evict long-term occupants unless those occupants prove open, peaceful possession and properly plead fraud.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal (Waki, Asike-Makhandia and Musinga, JJA) against orders of eviction and a permanent injunction issued by the Environment and Land Court (Eboso, J.) on 28th July 2017 in a trespass suit concerning plot Nyandarua/South Kinangop/6058. The respondent purchased the plot from Sarah Njoki Mugachia in 2001 with Land Control Board consent and was registered in October 2001, whereupon he found the appellants' cattle grazing on the land. The appellants defended on the basis of overriding interest arising from occupation since 1963, title by adverse possession, and alleged fraud in the transfer. The Court of Appeal identified two live issues: adverse possession and fraud. It held that a defence of adverse possession pleaded without a counterclaim or originating summons is procedurally competent, following Mtana Lewa vs Kahindi Ngala Mwagandi. On the merits, however, the claim failed: before registration to Sarah in 1991 the land was public land under the Settlement Fund Trustees, whose interest is not extinguishable under the Limitation of Actions Act (Gitu vs Ndungu); disputes and litigation from 1977 meant possession was not peaceful or uninterrupted; and no cogent evidence of occupation of plot 6058 was adduced, with any time running interrupted by the filing of the suit in March 2002. On fraud, the Court applied Vijay Morjaria and Kinyanjui Kamau: fraud must be specifically pleaded with particulars and distinctly proved to a standard higher than the balance of probabilities; the appellants' defence contained no particulars and the claim was stillborn. The appeal was accordingly dismissed with costs, affirming the decision below.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellants acquired an overriding interest in plot Nyandarua/South Kinangop/6058 based on occupation
  2. 2.Whether the appellants established title by adverse possession
  3. 3.Whether a defence of adverse possession pleaded without a counterclaim is procedurally competent
  4. 4.Whether the transfer of plot 6058 to the respondent was procured by fraud or illegality, and whether such allegations were properly pleaded and proved

Key legal issues

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01

Adverse possession as a defence without counterclaim

Holding

Procedurally competent; the respondent's objection based on Order 37 rule 7 fails.

Reasoning

Following Mtana Lewa vs Kahindi Ngala Mwagandi, a party sued for vacant possession may raise a defence of statute of limitation in a defence or defence and counter-claim. Originating summons under Order 37 rule 7 is required only where a party applies to be registered as proprietor by adverse possession, and that procedure is unsuitable for complex factual disputes. Prior authority (Wabala vs Okumu; Bayete Co. Ltd vs Kosgey) upheld such claims pleaded as defence alone.

p. 6
02

Whether adverse possession was established

Holding

Not established; the trial court's rejection of the claim was affirmed.

Reasoning

The burden lay on the appellants to prove open, peaceful, continuous and uninterrupted possession. Before registration of plot 586 to Sarah in 1991 the land was public land under the SFT, whose interest is not extinguishable under the Limitation of Actions Act (Gitu vs Ndungu; Boniface Oredo vs Wabomba Mukile), so 1963–1991 is excluded. Disputes and litigation over the plot from 1977 meant occupation was not peaceful or uninterrupted, and no cogent evidence of occupation of plot 6058 was adduced. Any time running was interrupted by the March 2002 suit.

p. 6
03

Fraud and illegality in the transfer

Holding

Ground fails; fraud was neither properly pleaded nor strictly proved.

Reasoning

Per Vijay Morjaria vs Nansingh Madhusingh Darbar, fraud must be specifically pleaded with particulars and distinctly proved; the same applies to misrepresentation and illegality under Order 2 rule 4 of the Civil Procedure Rules. The amended defence contained no particulars of fraud, rendering the claims stillborn. Even on the merits, the mere allegation that a sale agreement and Land Control Board consent could not issue on the same day fell well below the higher standard of proof for fraud (Kinyanjui Kamau vs George Kamau).

p. 7
04

Standard of review on a first appeal

Holding

Review is by way of retrial; deference is given to trial court fact-findings except where based on no evidence, misapprehension of evidence or wrong principles.

Reasoning

Rule 29 of the Court's Rules requires the first appellate court to reconsider the evidence and draw its own conclusions, but it should defer to trial court findings based on witness credibility. Interference is warranted where findings rest on no evidence, a misapprehension of the evidence, wrong principles, failure to account for material circumstances or probabilities, or where a credibility impression is inconsistent with the evidence generally.

p. 4

Legal principles established

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  • A defence of adverse possession may properly be raised in a defence without a counterclaim or originating summons; Order 37 rule 7 procedure is only required where a party applies to be registered as proprietor by adverse possession.
  • No claim for adverse possession lies against public land held by the Settlement Fund Trustees; such interest is not extinguishable under the Limitation of Actions Act.
  • Time under the Limitation of Actions Act is stopped when the owner asserts his right by taking legal proceedings or making an effective entry on the land.
  • Fraud must be specifically pleaded with particulars on the face of the pleading, distinctly alleged and distinctly proved; it cannot be inferred from the facts.
  • Allegations of fraud attract a standard of proof higher than the ordinary balance of probabilities, though not beyond reasonable doubt.
  • On a first appeal the court may interfere with trial court findings of fact where they are based on no evidence, a misapprehension of the evidence, or wrong principles.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellants to pay the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority
AS
majority
DM
majority
On appeal from
Environment and Land Court
Not stated
Jurisdiction invoked
First appeal to the Court of Appeal under rule 29 of the Court of Appeal Rules (trial court findings reviewed by way of retrial)

Relief refused

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Claim of ownership by adverse possession

No proof of open, peaceful, continuous and uninterrupted possession; time did not run before registration to Sarah in 1991 while land was public land under SFT, and any time was interrupted by the filing of suit in March 2002

p. 6

Claim that the transfer to the respondent was fraudulent, illegal, null and void

Fraud was neither specifically pleaded with particulars nor distinctly proved to the required standard

p. 8

Claim based on overriding interest / alleged amalgamation of plots 586 and 587

No proof of amalgamation of the two plots; they remained separate entities and no evidence of physical occupation of plot 6058

p. 6

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In sum, we find no merit in this appeal and we order that it be and is hereby dismissed with costs.
p. 8Disposition - dismissal of the appeal
It is only when the party applies to be registered as the proprietor of land by adverse possession that Order 37 Rule 7 requires such a claim to be brought by originating summons.
p. 6Procedure for pleading adverse possession
Before then it was public land under the SFT and therefore no claim could lie under the doctrine of adverse possession.
p. 6Adverse possession against public land / Settlement Fund Trustees
It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading.
p. 7Pleading and proof of fraud
Time which has begun to run under the Act is stopped either when the owner asserts his right or when his right is admitted by the adverse possessor.
p. 7Interruption of limitation period
As it is a first appeal, the standard of review as dictated by rule 29 of the Court's Rules is by way of a retrial in order to draw our own conclusions.
p. 4Standard of review on first appeal

Issues in the judgment

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minor

The trial court is described as noting the absence of Land Control Board consent for the subdivision, while the factual narrative records that consent was applied for and granted; the judgment does not reconcile this.

minor

The record itself notes defects: the original plaint, written statements and the original defence are missing from the record, and there is no explanation for the inordinate delay in disposing of the suit.

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, "Kiarie & 2 others v Magera (Civil Appeal 326 of 2017) [2018] KECA 467 (KLR)", Case Analysis (2018). Not stated in the judgment as provided (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/467/eng@2018-07-13

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