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 165 of 2019· [2022] KECA 782 (KLR)

Masambaga & 7 others v Malindi Holdings and Estate Limited

Court of Appeal
10 June 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
4,346 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Respondent, registered in 1994 as proprietor and 99-year lessee of LR Nos. 9298, 9299 and 9300 Malindi, sued the eight Appellants for trespass, seeking declarations of ownership, vacant possession, injunctions and damages. The ELC (Olola J) entered judgment for the Respondent, holding that adverse possession could only run from the 1994 registration and that compensation paid to the Appellants' father, Charo Shutu, in 2000/2001 terminated any adverse possession. The Appellants appealed on three main grounds: whether the compensation recipients bound them, whether adverse possession claims are individual, and whether the limitation defence was available. The Court of Appeal, as a first appellate court, re-evaluated the evidence. It held that adverse possession requires both factual possession and continuous animus possidendi; that the payments to Charo Shutu, ostensibly on behalf of the family in possession, together with agreements acknowledging the Respondent's title, interrupted the Appellants' intention to possess adversely; and that having relied on family possession, the Appellants could not approbate and reprobate. Since the land was government land until 1994, no adverse possession could run before then, and time ran afresh from the 2001 acknowledgment, making the Respondent's 2010 suit timely under section 7 of the Limitation of Actions Act. The court distinguished the Chevron and Kirimo Shutu authorities as involving different land and no payments to possessors. The appeal was dismissed with costs to the Respondent.

Key legal issues

#
01

Legal effect of payments made by the registered owner to occupiers

Holding

The payments to Charo Shutu, made ostensibly on behalf of the family in possession, together with agreements acknowledging the Respondent's ownership, interrupted the Appellants' animus possidendi and terminated adverse possession.

Reasoning

Adverse possession requires both factual possession and continuous intention to possess. The Appellants' own evidence was that possession was as members of the Charo Shutu family, whose head received the payments and acknowledged the Respondent's title. Having relied on that family possession, they could not disown the payment's effect; the payment rebutted their intention to possess adversely.

p. 5
02

Whether the defence of limitation of actions was available

Holding

No. Time ran afresh from the 2001 acknowledgment, so the Respondent's 2010 suit was within the 12-year limit under section 7 of the Limitation of Actions Act.

Reasoning

The suit premises were government land until allocation in 1994, so no adverse possession could run before then. The 2000/2001 payments and acknowledgments stopped any running of time, which recommenced in 2001. The Respondent filed suit in 2010, within twelve years, so the limitation defence failed.

03

Whether adverse possession claims are individual and whether the cited family cases assisted the Appellants

Holding

The cited Chevron and Kirimo Shutu decisions were distinguished because the land and circumstances differed and no payments were made to possessors in those cases.

Reasoning

The court distinguished the authorities relied on by the Appellants: the land in Chevron was different from the suit premises, and in neither cited case were payments made to the possessors by the legal owner, payments which the court found had far-reaching legal effects on the adverse possession claim.

p. 7

Legal principles established

#
  • Payment by the legal owner to persons in possession, coupled with agreements acknowledging the owner's title, interrupts and negates adverse possession; time runs afresh from the acknowledgment.
  • There can be no claim of adverse possession against public land; the limitation period for adverse possession against a registered owner runs only from registration.
  • A party who relies on evidence of possession as members of a family whose head accepted compensation and acknowledged the owner's title cannot approbate and reprobate by disowning that payment.

Court orders

#
  1. 1.The appeal is dismissed with costs to the Respondent

Authorities

#

Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 17
  • Limitation of Actions Actsection 37
  • Limitation of Actions Actsection 41
  • Government Land Actsection 142

Cases cited (13)

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

    Role of a first appellate court - appeal by way of retrial; court re-evaluates evidence and draws own conclusions.

  • Jabane vs Olenja
    [1986] KLR 661

    First appellate court not bound by trial judge's findings of fact not based on evidence or made on wrong principles.

  • Mtana Lewa vs Kahindi Ngala Mwagandi
    [2015] eKLR

    Essential prerequisites of adverse possession under section 7 of the Limitation of Actions Act.

  • Wambugu v. Njuguna
    [1983] KLR 172

    No claim of adverse possession against public land.

  • Chevron (K) Ltd vs Harrison Charo Wa Shutu
    [2016] eKLR

    Adverse possession cannot run against government land before 1994 allocation; distinguished as involving different land and no payments.

  • Evans v Bartlam
    (1937) 2 All ER 649

    A party cannot approbate and reprobate - cited by the Respondent.

  • Behan & Okero Advocates vs National Bank of Kenya
    (2007) eKLR

    A party cannot blow hot and cold at the same time - cited by the Respondent.

  • Joseph Mutafari Situma
    Civil Appeal 351 of 2002

    Time cannot stop running in favour of an adverse possessor unless he vacates or acknowledges the true owner's title - cited by the Appellants.

  • Joseph Gahumi Kiritu
    Civil Appeal No 20 of 1993

    Time stops running when the owner asserts his rights or the adverse possessor admits his right - cited by both parties.

  • Leonola Nerima Karani
    Civil Appeal No 142 of 2007

    Time stops when the true owner asserts title by filing suit for recovery, not by mere administrative action - cited by the Appellants.

  • Benson Mukuwa Wachira
    Civil Appeal No 121 of 2006 (Nairobi)

    An unfulfilled promise by a trespasser to leave or buy land is not an acknowledgment of title and does not stop time - cited by the Appellants.

  • Kirimo Shutu & 6 others vs Godfrey Karume
    Civil Appeal No 85 of 2016

    Prior findings said to favour the Charo Shutu family regarding the suit premises - cited by the Appellants.

  • Francis Gitonga Macharia vs Muiruri Waithaka
    Civil Appeal No 110 of 1997 [1998] eKLR

    Limitation period for adverse possession only starts running after registration of the land - cited by the Respondent.

On appeal from
Environment and Land Court at Malindi
Malindi ELC No. 96 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution Article 164; the judgment does not cite a specific provision)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (7)

#

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, "Masambaga & 7 others v Malindi Holdings and Estate Limited", Case Analysis (2022). Civil Appeal 165 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/782/eng@2022-06-10

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