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Court of AppealPartially AllowedCivil Appeal (Mombasa) arising from Civil Suit No. 265 of 1996 as consolidated with Civil Suit No. 266 of 1996

Gicho v Kenatco Transport Co Limited (Civil Appeal E084 of 2021) [2024] KECA 717 (KLR)

Court of Appeal of Kenya
21 June 2024
2,475 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal ruled that a long-time occupier could not claim land ownership because time for adverse possession was interrupted by earlier court cases.

What this practically means

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Executive summary

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This is an appeal from the Environment and Land Court at Mombasa (Yano, J) which, after hearing Civil Suit No. 265 of 1996 consolidated with Civil Suit No. 266 of 1996, ordered the appellant to vacate the suit property, awarded the respondent Kenatco Transport Co. Limited mesne profits at Kshs 800 per month from 1st November 1983, and dismissed the deceased's counterclaim for adverse possession. The deceased, a former employee of the respondent, had occupied a house on the suit property as a rent-paying tenant under his employment; he claimed he had purchased the house and alternatively that he had acquired title by adverse possession. The Court of Appeal at Malindi (Murgor, Laibuta and Odunga, JJ.A) noted that a differently constituted bench had already determined a companion appeal from the same consolidated suit (Mombasa Civil Appeal No. E037 of 2021), which held that permissive possession as tenant or intending purchaser does not become adverse until the licence is determined and that the claimant must cogently prove when time began to run. Adopting William Gatuhi Murathe v Gakuru Gathimbi, the Court held that the respondent's 1978 suit interrupted the running of limitation time until its dismissal in 1988, so no continuous 12-year occupation was shown and the counterclaim was rightly dismissed. However, following the sister appeal, the Court found that the suit property had been sold to Wanje Holdings Ltd, a non-party, and that neither party could maintain its claim. The Court set aside the judgment against the appellant, affirmed dismissal of the counterclaim, and made no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's claim for vacant possession was time barred under section 7 of the Limitation of Actions Act
  2. 2.Whether the respondent was barred from bringing the suit after dismissal for want of prosecution of earlier proceedings between the same parties
  3. 3.Whether the deceased's occupation of the suit property became adverse so as to sustain a claim of adverse possession
  4. 4.Whether the award of mesne profits at Kshs 800 per month was supported by evidence
  5. 5.Whether vacant possession could be granted when the suit property had been sold to a third party, Wanje Holdings Ltd, which was not a party

Key legal issues

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01

When possession becomes adverse to the registered owner

Holding

Possession commenced as a tenant or licensee by virtue of employment is not adverse until the licence is determined; the claimant must prove with cogency when time began to run

Reasoning

The deceased entered occupation as a rent-paying tenant under his employment with the respondent. Any alleged purchase arrangement was not proved by evidence of an agreement or completed payment. Because the inception and continuation of possession were permissive, time for adverse possession could not run absent determination of the licence. Uncertainty as to when time began is fatal to an adverse possession claim.

p. 4
02

Interruption of limitation time by prior litigation

Holding

The filing in 1978 of Civil Case No. 374 of 1978 by the respondent stopped the running of time until its dismissal in 1988, defeating any claim of continuous 12-year adverse possession

Reasoning

Relying on William Gatuhi Murathe v Gakuru Gathimbi, assertion of the owner's rights by legal proceedings stops time. If the appellant's contention were correct, time ran only from 1988 to 1996, less than the required 12 years. The respondent's suit filed in 1996 was therefore not time barred, and the counterclaim based on continuous occupation necessarily failed.

p. 4
03

Effect of transfer of the suit property to a non-party third party

Holding

Following the sister appeal, neither party's claim was maintainable because the property is registered in the name of Wanje Holdings Ltd, which was not joined to the proceedings

Reasoning

The respondent disclosed that the suit property had been sold to Wanje Holdings Ltd, which was not a party. The Court of Appeal in Mombasa Civil Appeal No. E037 of 2021 had found both the suit and counterclaim unmaintainable since the respondent was not the registered proprietor. This Court adopted the same reasoning, rendering it unnecessary to consider the remaining issues.

p. 5

Legal principles established

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  • Possession under a licence, whether as a tenant or an intending purchaser, does not become adverse until the licence is determined; the claimant must cogently prove when time began to run
  • Institution of legal proceedings by the owner interrupts the running of time for adverse possession; time resumes running only when such suit is disposed of
  • Mere possession for the statutory period does not justify an inference of adverse possession without evidence of dispossession or discontinuance by the titleholder

Court orders

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  1. 1.Judgement entered by the learned Judge against the appellant in favour of the respondent set aside
  2. 2.Order dismissing the appellant's counterclaim affirmed
  3. 3.No order as to the costs of the appeal and of the court below

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Mombasa
Civil Suit No. 265 of 1996 (consolidated with Civil Suit No. 266 of 1996)
Jurisdiction invoked
First appellate appeal to the Court of Appeal (the judgment does not expressly invoke a constitutional provision; it is an appeal as of right from the Environment and Land Court)

Relief refused

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Appeal against dismissal of the counterclaim for adverse possession

The running of limitation time was interrupted by the filing of the 1978 suit, so the appellant could not establish a continuous 12-year occupation

p. 4

Setting aside the dismissal of the counterclaim and allowing it with costs

The counterclaim was rightly dismissed and the Court of Appeal in the sister appeal had affirmed its dismissal

p. 4

Costs

No order as to the costs of this appeal and in the court below

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we hereby set aside the judgement entered by the learned Judge against the appellant in favour of the respondent, but afirm the order dismissing the appellant's counterclaim.
p. 5Final orders - disposition of the appeal
We likewise make no order as to the costs of this appeal and in the court below.
p. 5Costs
The law is clear that the claimant's possession of the land only becomes adverse to that of the owner upon the determination of the licence and as long as he is in possession with the permission of the owner whether as a tenant or as an intending purchaser, time does not begin to run against the owner.
p. 4Commencement of adverse possession time
time stops when the owner asserts his rights, or when there is an admission by the other party, and that assertion of rights occurs either when the owner takes legal proceedings or makes efiective entry
p. 4Interruption of limitation period
mere possession for the statutory period does not justify an inference of adverse possession, unless there is evidence that the titleholder has been dispossessed or has discontinued his possession for the statutory period
p. 4Burden of proof in adverse possession

Issues in the judgment

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minor

The judgment inconsistently names the appellant's father: the opening paragraph says the deceased in Civil Suit No. 266 of 1996 was 'James Gicho Makumi', while the related appeal E037 of 2021 is described as brought by representatives of 'the late Geoffrey Gikaru Njoroge', and Geoffrey is elsewhere described as the defendant in Civil Suit No. 265 of 1996

minor

The judgment states the deceased claimed adverse possession 'having been in occupation of the same for over 12 years from 1st November 1983', but the same paragraph dates occupation from '28th September 1978' in the alternative, and the narrative elsewhere dates occupation to 1974/1977; the pleading dates are internally inconsistent

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gicho v Kenatco Transport Co Limited (Civil Appeal E084 of 2021) [2024] KECA 717 (KLR)", Case Analysis (2024). Civil Appeal (Mombasa) arising from Civil Suit No. 265 of 1996 as consolidated with Civil Suit No. 266 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/717/eng@2024-06-21

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