Kamau & 42 others v Leonid Limited (Civil Appeal 27 of 2021) [2023] KECA 1221 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed 43 squatters' claim to own Mombasa land through adverse possession because their evidence was contradictory and incomplete.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellants proved adverse possession of Plot No 2380/V/MN Miritini
No. Their testimony was riddled with contradictions as to dates of entry, several entered as licensees or with permission of Kenya Railways Corporation, they failed to identify the portions occupied, and their evidence fell below the standard of proof.
The Court reviewed the evidence of the fourteen appellants who testified and found glaring inconsistencies: the 1st appellant gave contradictory dates of entry (1982 vs 1995), several appellants paid rent or held permits from Kenya Railways Corporation, and the 14th appellant stated the land was empty when he entered in 1997. Others held business licences from the Municipal Council. Only 14 of 43 appellants testified. The claim failed on credibility and proof.
Whether occupation with permission of a third party or under licence defeats a claim of adverse possession
Yes. Possession under the licence of the owner or with permission is not adverse; a claimant cannot derive possession from permission and simultaneously assert hostility to the title.
Citing Mtana Lewa vs Kahindi Ngala Mwagandi, the Court reiterated that adverse possession requires possession neither by force, stealth nor under licence of the owner, adequate in continuity, publicity and extent. Evidence that the 4th, 12th and 27th appellants entered with permission of Kenya Railways Corporation, and that others held licences or paid rent, was fatal to their claims of hostility of possession.
Whether failure to identify or survey the specific portions occupied defeats the claim
Yes. The appellants were obliged to identify or describe the portions of the property they occupied, which they failed to do.
Following Wilson Kazungu Katana & 101 Others v Salim Abdalla Bakshwein, the Court held identification of the land in possession is an important and integral part of proving adverse possession, citing Githu vs Ndete. The appellants did not produce a survey report or otherwise establish with certainty the portions they claimed, and several admitted not knowing the size of the plot.
Legal principles established
#- To succeed in adverse possession a claimant must prove the land is registered in the respondent's name, that possession is open and exclusive and adverse to the title of the real owner, and occupation in excess of twelve years having dispossessed the owner
- Possession by permission of the owner (as licensee) is not adverse possession; entry must be non-permissive and possession hostile to the title holder
- Identification of the specific land in possession of the adverse possessor is an integral and mandatory part of proving adverse possession
- A claimant must show the date of entry, the nature of possession, knowledge of the owner, duration, and that possession was open and undisturbed for the requisite 12 years
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondent
- On appeal from
- Environment and Land Court
- Originating Summons dated June 17, 2008
- Jurisdiction invoked
- First appellate appeal from the Environment and Land Court (not expressly stated; appeal against final judgment under the Court of Appeal's appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau & 42 others v Leonid Limited (Civil Appeal 27 of 2021) [2023] KECA 1221 (KLR)", Case Analysis (2023). Court of Appeal, Mombasa (memorandum of appeal dated April 13, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1221/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.