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Court of AppealDismissedCivil Appeal No 123 of 2017· [2022] KECA 145 (KLR)

Kasongo & another v Ochieng & 2 others (Civil Appeal 123 of 2017) [2022] KECA 145 (KLR)

Court of Appeal of Kenya
11 February 2022
FTF. TuiyottPKP. O. KiageMNMumbi Ngugi
3,022 words in judgment
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The bottom line

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The Court of Appeal confirmed that buying land already occupied by someone else doesn't restart the 12-year clock for claiming it through adverse possession.

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 Kisumu against a judgment of the Environment and Land Court delivered on 27th June 2016, which had allowed a claim for adverse possession under section 38 of the Limitations of Actions Act in respect of 2.1 hectares of parcel South Sakwa/Kogelo/197. The respondents, relatives of the original owners, claimed they had been born on, cultivated and occupied the suit properties with the permission of the late Gudo Odero, and remained in occupation after the properties were sold in a forced sale to Nyaseme in 1980 and later to the appellants in 2011. The trial court found the 1st respondent had been in uninterrupted, adverse occupation of 2.1 ha of plot 197 from 1980 until 2011, thereby acquiring title by prescription, and ordered subdivision and transfer of that portion. On appeal, Tuiyott JA reconsidered the evidence, noting documentary proof of sugarcane cultivation and corroboration from the appellants' own witnesses that Nyaseme never took possession or interrupted the occupation. The court adopted Githu v Ndeete to hold that a mere change of ownership does not interrupt adverse possession, so the 2011 transfer to the appellants could not defeat the accrued adversity. The court also held that a judgment for less than the whole parcel claimed was permissible where consistent with the pleadings. The appeal was dismissed with costs, the trial judgment affirmed, with Kiage JA and Mumbi Ngugi JA concurring.

Key legal issues

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01

Whether adverse possession continues against a purchaser from the original registered owner

Holding

Yes - the purchase by and transfer to the appellants in 2011 did not reverse the ouster or disrupt the existing adversity, which had already run from 1980.

Reasoning

Relying on Githu v Ndeete, the court held that once a claimant has dispossessed the title holder and time has begun to run, a mere change of registered ownership cannot defeat the accrual of title by prescription. To hold otherwise would allow owners to defeat adverse possession simply by transferring the land. The 1st respondent had already ousted Nyaseme before the appellants purchased.

p. 5
02

Whether the 1st respondent proved open, uninterrupted occupation adverse to Nyaseme

Holding

Yes - documentary evidence of sugarcane cultivation from 1989-1994, corroborated by defence witnesses, established occupation of 2.1 ha of plot 197 from before 1980 until 2011 without Nyaseme taking possession or interrupting.

Reasoning

The 1st respondent produced an outgrowers sugarcane agreement, job completion certificates, debit advice and delivery notes all relating to plot 197. Defence witnesses confirmed Nyaseme never cultivated the plot and never objected to the 1st respondent's cultivation until 2011. The 31-year period far exceeded the statutory 12 years.

p. 5
03

Whether judgment could be entered for less than the whole parcel pleaded

Holding

Yes - a court may award less than claimed where consistent with the pleading; the claim was for a portion of plot 197 and the award of 2.1 ha fell within it.

Reasoning

The court rejected the appellants' argument that judgment could not be entered for part of the land. The rule against obtaining more than pleaded does not prevent an award of less, and the award of 2.1 ha as part of plot 197 was consistent with what the 1st respondent expressly pleaded.

p. 6

Legal principles established

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  • A mere change of ownership of land occupied by another under adverse possession does not interrupt the adverse possession; time already run continues against the new registered owner.
  • Consensual possession cannot be adverse; consent may be express or non-verbalised, and non-verbalised consent is particularly relevant in family-relation contexts.
  • While a party cannot get more than pleaded, a court may award less than pleaded where the award is consistent with what is expressly pleaded.
  • Time for adverse possession runs from when the claimant dispossesses the true owner or the owner discontinues possession, and the limitation law affects successors in title as well as present title holders.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Appellants to pay costs of the appeal

Authorities

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Legislation

  • Limitation of Actions Actsection 38
  • Limitation of Actions Actsection 7

Cases cited (7)

  • Mwatando Mwagambo Wasanga vs Ngaruko Mwangombe & 10 Others
    Environment and Land Court Malindi Cause No. 238 of 2013 (OS)
  • John Baraza Ojiambo vs Veronica Auma Ojiambo & 3 Others
    [2013] eKLR
  • Titus Kigoro Munyi vs Peter Mburu Kimani
    [2015] eKLR, Court of Appeal at Nyeri Civil Appeal No. 28 of 2014
  • Francis Gitonga Macharia – v – Muiruri Waithaka
    Civil Appeal No. 110 of 1997
  • Peter Thuo Kairu – v – Kuria Gacheru
    (1988) 2 KLR 111
  • Githu v Ndeete
    [1984] KLR
  • Selle & Another v Associated Motor Boat Co. Ltd. & Others
    (1968) EA
On appeal from
Environment and Land Court (High Court)
Originating Summons dated 26th May 2011 (number not stated)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (specific provision not cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Kasongo & another v Ochieng & 2 others (Civil Appeal 123 of 2017) [2022] KECA 145 (KLR)", Case Analysis (2022). Civil Appeal No 123 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/145/eng@2022-02-11

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