Mokua v Beri & 3 others
The bottom line
#Kenya's Court of Appeal refused to protect a man's long-term home because living there by a relative's invitation cannot ripen into legal ownership.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was arguable for purposes of Rule 5(2)(b) relief
The appeal was not arguable; the applicant was a licensee whose occupation was by invitation of his tenant son, and prescriptive rights do not avail a licensee.
The trial evidence showed the appellant lived on the suit premises at the invitation of his son, a tenant. Continued occupation after the son's departure did not convert his possession into possession as of right. A licensee cannot claim adverse possession, so the appeal had no arguable point.
Effect of eviction before registration of a court order recognising prescriptive rights
Eviction by the registered proprietor before obtaining and registering a court order recognising the claim for prescriptive rights extinguishes the adverse possession claim.
Sections 37 and 38 of the Limitation of Actions Act require prescriptive rights to take effect upon recognition by court order and an entry in the title register. The appellant was evicted on December 4, 2015 before any such order or entry, bringing his claim to a dead end.
Whether the second limb of the twin principle (nugatory) needed determination
Having failed on the first limb, the court declined to pronounce on the nugatory limb.
Both limbs of the Rule 5(2)(b) test must be satisfied. Since the applicant failed to demonstrate an arguable appeal, the court found it unnecessary to consider whether the appeal would be rendered nugatory absent the orders sought.
Legal principles established
#- To succeed on an application under Rule 5(2)(b), an applicant must satisfy both the arguability and nugatory limbs; satisfying only one is insufficient.
- An applicant under Rule 5(2)(b) need only show one arguable point; the point need not ultimately succeed.
- A person in occupation at the invitation of a tenant is a licensee from whom prescriptive rights do not avail; continued occupation after the tenant's departure does not constitute occupation as of right.
- Under sections 37 and 38 of the Limitation of Actions Act, prescriptive rights take effect only upon recognition by a court order and an entry in the title register; eviction by the registered proprietor before such registration ends the adverse possession claim.
Court orders
#- 1.The applicant's Notice of Motion dated November 11, 2021 is dismissed with no orders as to costs
- On appeal from
- Environment and Land Court of Kenya at Nairobi
- E.L.C Suit No. 1288 of 2015 Consolidated with E.L.C Cause No. 692 of 2014 (O.S)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mokua v Beri & 3 others", Case Analysis (2022). Civil Appeal (Application) 260 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1148/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.