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Court of AppealDismissedCivil Appeal No. 110 of 2016· [2020] KECA 942 (KLR)

Richard Wefwafwa Songoi v Ben Munyifwa Songoi

Court of Appeal
31 January 2020
AMAsike MakhandiaPKP. O. KiageOTOtieno-Odek
4,976 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a brother's land claim, ruling that occupying family land with permission for decades does not amount to adverse possession.

What this practically means

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Executive summary

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The Court of Appeal (Makhandia, Kiage and Otieno-Odek JJA) dismissed an appeal against the High Court's dismissal of an Originating Summons claiming ownership of Land Parcel Kimilili/Kamkuuywa/660 by adverse possession. The court agreed with the appellant on one point: the High Court judge erred in holding the suit res judicata, because the earlier magistrate's judgment had been set aside for want of jurisdiction, rendering those proceedings null and void; res judicata requires determination by a competent court. However, the court upheld the dismissal on the adverse possession claim. It found the appellant's father had no proprietary interest capable of being gifted, so the appellant's entry in 1970 was permissive and cannot found adverse possession. The court adopted the Indian Supreme Court's principle in Mohan Lal that a claimant cannot plead gift or title and adverse possession simultaneously, the two pleas being mutually inconsistent. It further found the appellant's possession was under constant challenge from 1976 (a letter from the respondent), in 1984, at a 1992 clan meeting and by the 1992 suit, so it was never peaceful and uninterrupted for the requisite 12 years. The court did find the judge erred in computing time from 1980 rather than 1970, but this did not save the claim. The appeal was dismissed with costs.

Key legal issues

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01

Whether the suit was res judicata

Holding

The judge erred: the magistrate's court lacked jurisdiction, so its proceedings were null and void and there were no two suits for res judicata to apply.

Reasoning

The first condition for res judicata is determination by a competent court. The High Court on appeal had set aside the magistrate's judgment for want of jurisdiction, rendering the entire proceedings null and void, as if no suit had been filed. The Supreme Court's conditions in Communications Commission of Kenya were therefore not fulfilled, and the res judicata finding could not stand.

p. 3
02

Whether the appellant proved adverse possession

Holding

No. Entry was permissive, the possession was under constant challenge, and the plea of adverse possession was inconsistent with the claim founded on gift.

Reasoning

The appellant entered in 1970 by permission of a father who had no proprietary interest to gift. His possession was challenged in writing from 1976, in 1984, at a 1992 clan meeting and by suit in 1992, so it was never peaceful and uninterrupted for 12 years. He also could not plead gift and adverse possession simultaneously.

p. 6
03

Computation of time for adverse possession

Holding

The judge erred in computing time from 1980; there was evidence the appellant used the land from 1970.

Reasoning

The appellant's testimony, corroborated by PW1, PW2 and PW3, showed he began ploughing the suit property in 1970 and built his house in 1980. On a balance of probabilities, time should have been computed from 1970, not 1980. However, this did not save the claim because the possession was permissive and interrupted.

p. 4

Legal principles established

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  • A suit determined by a court without jurisdiction is null and void and cannot found a plea of res judicata, since res judicata requires determination by a competent court.
  • A claimant cannot found possession on a gift or title from another and simultaneously plead adverse possession; the two pleas are mutually inconsistent.
  • Entry onto land by permission, lawful or not, precludes a claim of adverse possession.

Court orders

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  1. 1.The appeal is dismissed with costs
On appeal from
High Court of Kenya (Environment and Land Court, Bungoma)
Bungoma ELC Case No. 68 of 1997
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (first appeal on facts and law)

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, "Richard Wefwafwa Songoi v Ben Munyifwa Songoi", Case Analysis (2020). Civil Appeal No. 110 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/942/eng@2020-01-31

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