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Court of AppealDismissedCivil Appeal 126 of 2019· [2022] KECA 535 (KLR)

Chigamba & 2 others v Noormohamed & 8 others

Court of Appeal
6 May 2022
3,609 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed squatters' bid to claim 433 acres, confirming that vague, uncorroborated evidence of occupation cannot defeat a registered landowner's title.

What this practically means

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Executive summary

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The appellants, original plaintiffs in an Originating Summons in the Environment and Land Court at Mombasa, claimed two plots measuring 433.42 acres by adverse possession against the registered owners. The ELC (Waithaka J.) dismissed their claim, finding they occupied less than 15 acres of a parcel that had ceased to exist upon subdivision, and ordered their eviction on the 4th Respondent's counterclaim. On appeal, the Court of Appeal at Mombasa (Kairu, Nyamweya and Lesit, JJA) identified two issues: whether the elements of adverse possession were proved to the required standard, and whether the remedies sought were deserved. Applying the settled requirements that a claimant prove continuous, exclusive possession nec vi, nec clam, nec precario for over twelve years, corroborated by independent verifiable evidence, the court found the appellants' evidence riddled with inconsistencies as to the size, location and exclusivity of the portions occupied. Identity cards and photographs could not prove duration of occupation, and PW1's 1985 agreement with the 4th Respondent defeated adversity of possession. The court also endorsed the requirement of corroboration to avoid collusion and to meet the balance of probabilities where a registered owner's title is to be divested. On remedies, the appellants' proposed severance of the 4th Respondent's interest was unavailable because the land had been subdivided and sold to third parties. The appeal was dismissed, but the eviction orders were qualified to the plots still registered in the 4th Respondent's name, namely plots 1863, 1864, 3185, 3186, 3187, 3188 and 3189. The appellants were ordered to meet the costs of the appeal. The appeal against the other respondents was withdrawn during the hearing.

Key legal issues

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01

Whether the elements of adverse possession were proved to the required standard

Holding

They were not. The evidence was inconsistent as to the size, location and exclusivity of the portions occupied, and some claimants held under agreements with the owner.

Reasoning

The court re-evaluated the testimony of PW1, PW2 and PW3 and found contradictions on the acreage occupied, the number of families, and the portions claimed. The site visit showed only about 15 acres occupied of 433.42 acres. Identity cards and photographs could not prove duration of occupation, and PW1's 1985 agreement with the 4th Respondent defeated adversity of possession.

p. 5
02

Whether the remedies sought by the Appellants and the 4th Respondent were deserved

Holding

The Appellants' remedies were unavailable since their claim failed and the land had been subdivided and sold to third parties; the 4th Respondent's eviction orders were proper but qualified to the plots still registered in his name.

Reasoning

Registration as owner could only follow extinguishment of the Respondents' title, which was not proved. The 4th Respondent produced title documents showing the claimed land had been subdivided and disposed of to third parties, so severance was impossible. The eviction orders were qualified to plots 1863, 1864, 3185, 3186, 3187, 3188 and 3189.

p. 6

Legal principles established

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  • A claimant in adverse possession must prove continuous and exclusive use of the land nec vi, nec clam, nec precario, and occupation for over twelve years.
  • Possession must be complete and exclusive physical control over an identifiable portion of the land for the requisite period, verifiable by physical survey.
  • Corroboration of the fact and length of occupation by independent verifiable evidence is necessary in adverse possession claims to meet the balance of probabilities and avoid collusion.
  • Identity cards prove only date and district of birth, not residence or entry onto property; photographs have limited probative value on duration of occupation.
  • Possession under an agreement with the registered owner for allocation of plots is not adverse possession.

Court orders

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  1. 1.Appeal against the 1st to 3rd Respondents and 5th to 9th Respondents withdrawn and allowed to be withdrawn
  2. 2.Appeal dismissed save for clarification that the eviction orders relate to plots number 1863, 1864, 3185, 3186, 3187, 3188 and 3189 owned by the 4th Respondent
  3. 3.Appellants to meet the costs of the appeal

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Court of Appeal RulesRule 29(1)

Cases cited (19)

  • Selle & Another vs Associated Motor Boat Co. Ltd & others
    (1968) EA 123

    Duty of a first appellate court to reconsider and evaluate evidence and draw its own conclusions

  • Jabane vs Olenja
    [1986] KLR 661

    Departure from trial court findings only where not based on evidence or founded on wrong principles

  • Samuel Kihamba v Mary Mbaisi
    (2015) eKLR

    Cited by appellants on peaceful uninterrupted possession

  • Gulam Miriam Noordin v Julius Charo Karisa
    (2015) eKLR

    Cited by appellants - developments on land as evidence of dispossession

  • Mount Elgon-Beach Properties Limited vs Kalume Mwanongo Mwangaro & Another
    (2019) eKLR

    Cited by 4th respondent - need to prove size and location of occupied portion

  • Kasuve v Mwaani Investments Limited & 4 Others
    (2004) 1 KLR

    Cited by 4th respondent - ingredients of adverse possession

  • Teresa Wachika Gachira vs Joseph Mwangi
    [2009] eKLR

    Onus on claimant to prove continuous and exclusive use nec vi, nec clam, nec precario

  • Mtana Lewa vs Kahindi Ngala Mwagandi
    [2015] eKLR

    Essential prerequisites of adverse possession and Section 7 Limitation of Actions Act

  • Jandu vs. Kirplal & Another
    (1975) EA 225

    Supporting authority on adverse possession requirements

  • Wambugu vs. Njuguna
    [1983] KLR 173

    Supporting authority on adverse possession requirements

  • Eliakim Masale vs Ilale Mohamed & 4 Others
    Mombasa Civil Appeal 135 of 2019

    Evidentiary value of identity cards and photographs; need for corroboration of occupation

  • Buckinghamshire CC vs Moran
    (1990) Ch 623

    Complete and exclusive physical control as the required possession

  • JA Pye (Oxford) Ltd vs Graham
    (2003) 1 AC 419

    Complete and exclusive physical control as the required possession

  • Elements of Land Law, 5th Edition (Kevin Gray and Susan Francis Gray)
    pages 1184-1185

    Textbook - corpus of possession, verifiability by survey, partial dispossession

  • Gabriel Mbui vs Mukindia Maranya
    (1993) eKLR

    Cited by appellants - subdivision and registration do not extinguish adverse possession rights

  • Mwangi Githu vs Livingstone Ndeete
    (1980) eKLR

    Cited by appellants - new registered owners hold land in trust for those with overriding interests

  • Lazaro Kabebe vs Ndege Makau & Another
    (2017) eKLR

    Cited by appellants - entitlement to a portion of land by adverse possession

  • Wilson Kazungu Katana & 101 others vs Salim Abdalla Bakhswein & Another
    (2015) eKLR

    Cited by appellants - identification of suit land requires copy of title

  • Mombasa Teacher Cooperative Savings & Credit Society Limited vs Robert Muhambi Katana & 155 Others
    (2018) eKLR

    Cited by 4th respondent - squatters become trespassers and may be ordered to vacate

On appeal from
Environment and Land Court of Kenya at Mombasa
ELC case no. 995 of 2006 (O.S.)
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 29(1) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Chigamba & 2 others v Noormohamed & 8 others", Case Analysis (2022). Civil Appeal 126 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/535/eng@2022-05-06

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