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Court of AppealDismissedCivil Appeal No. 235 of 2014

Ramco Investment Limited v Uni-Drive Theatre Limited [2018] KECA 590 (KLR)

Court of Appeal
18 May 2018
3,884 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you cannot claim land by adverse possession if the owner's consent, even informal friendly permission, allowed your occupation.

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 Nairobi (Waki, Nambuye and Kiage, JJA) against the judgment of P. Nyamweya, J. dated 30 January 2014 in H.C.C.ELC. No. 106 of 2009, dismissing Ramco Investment Limited's originating summons claiming title to a 0.1249-hectare portion of Uni-Drive Theatre Limited's land (L.R. No. 10341) by adverse possession. The appellant had used the portion, which carried a KP&LC wayleave, as a children's playground and rubbish dump from 1985, and claimed its title had extinguished the respondent's. The appellate court framed two issues: whether the appellant's possession was exclusive, and whether it was consensual. On the first, it found the respondent maintained possession through electricity poles and transformers erected and maintained by KP&LC with the respondent's permission pursuant to conditions of its grant, so the appellant never dispossessed the respondent; the trial judge's findings were vindicated. On the second, it upheld the finding that the initial occupation rested on friendship between the directors of the two companies and was therefore consensual, holding that consent need not be formalised or sanctioned by company resolutions. The court applied the settled principles that a claimant must prove exclusive possession and dispossession, and that occupation with the owner's consent cannot be adverse. The appeal was dismissed with costs to the respondent both on appeal and in the High Court.

Questions the Court framed

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

  1. 1.Whether the appellant's alleged possession of the suit property was exclusive
  2. 2.Whether the appellant's possession of the suit property was consensual

Key legal issues

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01

Whether the appellant was in exclusive possession of the disputed portion

Holding

The appellant was not in exclusive possession; the respondent maintained possession through the electricity poles and transformers erected and maintained by KP&LC on the wayleave with the respondent's permission, pursuant to conditions of its grant

Reasoning

The appellant's own witnesses conceded they found the electricity poles and transformers already on the land, did not know who erected them, and that the appellant did not authorise their erection or maintenance. DW1 and DW2 corroborated that the respondent complied with the wayleave requirements. This ousts the appellant's complaint that the trial judge erred, and the conduct falls within Wambugu v Njuguna: much may be done on land of an owner with little present use without possession inconsistent with the owner's title.

p. 5
02

Whether the appellant's occupation was consensual

Holding

The occupation was consensual, founded on the friendship between the directors of the two companies, and consent need not be in a formal agreement or sanctioned by company resolutions

Reasoning

DW5 and DW6 testified that the directors were on friendly terms and the appellant was allowed use of the disputed portion solely to address security concerns. The appellant never challenged the existence of that friendship, only arguing the arrangement required company resolutions. In the absence of such resolutions, the judge properly relied on the demeanour of witnesses, whom she believed. Consent founded on amity and good neighbourliness suffices to defeat a claim of adverse possession.

p. 6
03

Whether the trial judge misdirected herself in finding the appellant failed to prove its case on a balance of probability

Holding

The judge did not err; the appellant failed to discharge the burden of proving adverse possession on a balance of probability

Reasoning

The burden of proving title by adverse possession rests on the person asserting it. The evidence showed the presence of electricity infrastructure on the wayleave corridor and that the appellant's initial occupation was permissive. The judge's findings were supported by unchallenged testimony and confirmed by the locus in quo visit, so the appellate court found no basis to disturb them.

p. 6

Legal principles established

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  • As a first appellate court, the Court of Appeal must analyse and evaluate the evidence afresh and reach its own independent decision, while allowing for the trial court's advantage of hearing and seeing the witnesses
  • A claimant for adverse possession must demonstrate exclusive possession and control over the disputed portion and must have dispossessed the undisputed legal owner
  • A person who occupies another's land with the owner's consent cannot be in adverse possession; such an occupier must show entry as a trespasser rather than with consent
  • Where the true owner intends a future particular use of land and leaves it unoccupied, the owner does not lose title merely because another enters and uses it for a temporary purpose
  • An appellate court will not interfere with a trial judge's findings on demeanour of witnesses unless there is a misapprehension of the facts or the law

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal and of the suit in the High Court awarded to the respondent

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.ELC. No. 106 of 2009
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate jurisdiction of the Court of Appeal (first appeal against judgment and decree of the High Court)

Relief refused

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Declaration that the respondent's title to the suit portion was extinguished by adverse possession and registration of the appellant as proprietor

The appellant's possession was neither exclusive nor adverse; the respondent maintained possession through KP&LC and the appellant's occupation was consensual

p. 5

Permanent injunction restraining the respondent from interfering with the suit portion

The underlying adverse possession claim failed, so the injunctive relief was not available

p. 6

Costs

Appeal dismissed with costs to the respondent both on appeal and in the High Court

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.

It is the duty of the Court of Appeal, as a first appellate court, to analyse and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeing the witnesses and their demeanour and giving allowance for that.
p. 4Duty of a first appellate court
required the appellant as the claimant for adverse possession to demonstrate existence of exclusive possession and control over the disputed portion and to have dispossessed the respondent as the undisputed legal owner
p. 5Elements of adverse possession
a person who occupies another person’s land with that other persons’ consent cannot be said to be in adverse possession
p. 5Consent defeats adverse possession
when a true owner of the land intends to use it for a particular purpose in the future, but meanwhile has no immediate use for it, and so leaves it unoccupied, he does not lose his title to it simply because some other person enters on it and uses it for some temporary purpose
p. 5Future intended use preserves true owner's title
The upshot of the totality of the above assessment is that we find no merit in this appeal. It is accordingly dismissed with costs to the respondent both on appeal and in the High Court.
p. 6Disposition

Issues in the judgment

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minor

The same English authority is rendered inconsistently within the judgment, as 'Wallis Gayton Bay Holiday Camp Limited versus Shellmex and B.P. Ltd' when cited by the respondent and 'Wallis Cayton Bay Hlidays Camp Ltd versus Shell Mex and BP Ltd' when adopted by the 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, "Ramco Investment Limited v Uni-Drive Theatre Limited [2018] KECA 590 (KLR)", Case Analysis (2018). Civil Appeal No. 235 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/590/eng@2018-05-18

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