Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 84 of 2019· [2020] KECA 618 (KLR)

Loise Nduta Itotia v Aziza Said Hamisi [2020] KECA 618 (KLR)

Court of Appeal
5 June 2020
DMD.K. MusingaSKS. Gatembu KairuAMA. Murgor
4,917 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that 13 years of open, uninterrupted land occupation transferred ownership from the registered owner to the occupier.

What this practically means

#

Executive summary

#
This was a first appeal to the Court of Appeal at Malindi against the judgment of the Environment and Land Court (Olola, J.) which declared Aziza Said Hamisi the proprietor of land known as Subdivision Number MN/III/506 at Jumba Ruins, Mtwapa, by adverse possession and ordered the Registrar of Titles to issue her a provisional Certificate of Title. The respondent claimed to have occupied the property from 2002, building a permanent residence, farming, and running a restaurant. The appellant, administrator of her late husband's estate which acquired the land in 1972, contended the occupation was neither open nor continuous and that time ceased to run when her son visited the land in 2006. Writing the leading judgment, Murgor, JA rehearsed the elements of adverse possession under the Limitation of Actions Act (Cap 22), relying on Kimani Ruchire, Wambugu vs Njuguna and Gulam Miriam Noordin. The Court found occupation began in 2002, was open and notorious, and that between 2002 and 2015 (13 years) the appellant took no effective entry or legal proceedings to interrupt time; her title was therefore extinguished by section 17. The trial judge's evaluation of evidence was affirmed and the appeal dismissed with costs to the respondent. Musinga, JA concurred. Gatembu, JA dissented: in his view the evidence, including the survey and valuation reports, showed occupation of only a portion of the 1.616-hectare property, and he would have remitted the proceedings to the ELC under Rule 31 to ascertain the extent of occupation. The majority decision binds subordinate courts and the ELC on the continuity, openness and exclusivity requirements of adverse possession claims.

Key legal issues

#
01

Date of commencement of the respondent's occupation

Holding

The respondent took up occupation in 2002, as testified and corroborated by PW3.

Reasoning

The respondent testified she moved onto the land in 2002; Murshid (PW3), an employee of the National Museums who had worked nearby for almost 20 years, confirmed she moved on in 2002. The court held no other evidence demonstrated anything to the contrary, so occupation from 2002 was established.

p. 3
02

Whether occupation was visible, open and notorious

Holding

The structures and developments on the land were open and visible, and the appellant had notice of the occupation.

Reasoning

The respondent built a permanent house and water tower, farmed and ran a restaurant. George Kagiri confirmed old structures, a coral wall and chain link fence in 2006; a 2016 survey report confirmed permanent buildings. Since the appellant did not claim the structures or explain their existence, they belonged to the respondent, and if Kagiri saw them in 2006, Peter would also have noted them.

p. 4
03

Whether the 12-year period was satisfied and title extinguished

Holding

Occupation ran from 2002 to 2015 (13 years) uninterrupted; the appellant's title was extinguished under section 17 of the Limitation of Actions Act.

Reasoning

Between 2005 and 2006 Peter and Kagiri visited the property, but after 2006 the appellant took no steps to recover possession until the respondent filed suit in 2015. Time stops only upon the owner's assertion of right by effective entry or legal proceedings; the appellant did neither, so her title stood extinguished.

p. 4
04

Whether the respondent occupied the entire property

Holding

In the majority's view, absent evidence controverting occupation of the whole property, the trial court was entitled to find open and notorious possession of the entire property.

Reasoning

No evidence was led on the specific areas of physical occupation, and the appellant did not cross-examine the respondent on the acreage occupied by the house, restaurant or farming. Without such controverting evidence, the trial court's conclusion could not be disturbed. Gatembu, JA dissented on this point.

p. 4

Legal principles established

#
  • On a first appeal, the Court of Appeal reconsiders and re-evaluates the evidence and draws its own conclusions, while making due allowance for not having seen or heard the witnesses.
  • For adverse possession to succeed, the occupation must be continuous, open and uninterrupted for 12 years, to the knowledge (actual or constructive) of the registered owner.
  • Time running under the Limitation of Actions Act stops only when the owner asserts his right by peaceable and effective entry or by legal proceedings; after 12 years the registered owner's title is extinguished.

Court orders

#
  1. 1.Appeal dismissed with costs to the respondent

Authorities

#

Legislation

  • Limitation of Actions ActCap 22, section 7
  • Limitation of Actions ActCap 22, section 13
  • Limitation of Actions ActCap 22, section 17
  • Court of Appeal RulesRule 31

Cases cited (9)

  • Githu vs Ndeete
    [1984] KLR 776
  • Kenya Ports Authority vs Kuston (Kenya) Limited
    (2009) 2 EA 212
  • Kimani Ruchire vs Swift Rutherford & Co. Ltd.
    [1980] KLR 10
  • Wambugu vs Njuguna
    [1983] KLR 172
  • Wallis Cayton Bay Holiday Camp Ltd. vs Shell Mex and B.P. Ltd.
    [1975] Q.B. 94
  • Leigh vs. Jack
    (1879) 5 Ex D 264
  • Gulam Miriam Noordin vs Julius Charo Karisa
    [2015] eKLR
  • Joseph Gahumu Kiritu vs Lawrence Munyambu Kabura
    Civil Appeal No 20 of 1993
  • Christopher Kioi & another vs. Winnie Mukolwe & 4 others
    [2018] eKLR
On appeal from
Environment and Land Court at Malindi
ELC No. 122 of 2015 (OS)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (appeal from the Environment and Land Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Loise Nduta Itotia v Aziza Said Hamisi [2020] KECA 618 (KLR)", Case Analysis (2020). Civil Appeal No. 84 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/618/eng@2020-06-05

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