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Court of AppealPartially AllowedAppeal from the Environment and Land Court (memorandum of appeal dated 14th September 2018); appeal number not stated in the judgment· [2024] KECA 1221 (KLR)

John & 8 others v Gikunda (Civil Appeal 168 of 2018) [2024] KECA 1221 (KLR)

Court of Appeal of Kenya
20 September 2024
WKW. KaranjaJMJamila MohammedAMA. O. Muchelule
3,734 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 an adverse possession claim, confirming that living on land with the owner's permission never starts the 12-year ownership clock.

What this practically means

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Executive summary

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The appellants, widows and children of the deceased registered owner of Land Parcel Timau Settlement Scheme/128, appealed against a decision of Mwangi Njoroge J in the Environment and Land Court declaring the respondent entitled to 2 acres by adverse possession and nullifying the subdivision of the estate land. The respondent had contracted in 1987 to buy 5 acres from the deceased, who died in 1996 before completion; the family protested the sale from the outset, a High Court suit ordered a refund of the Ksh.25,000 paid, and a Land Disputes Tribunal ordered the respondent to vacate. A grant in a clandestine succession cause naming him a beneficiary was revoked, and the estate was redistributed. The Court of Appeal, as a first appellate court, framed two issues: res judicata and adverse possession. It held the suit was not res judicata because the Tribunal lacked jurisdiction over registered-land proprietary disputes and the revoked succession grant never determined proprietary rights, a probate court being incapable of deciding adverse possession. On adverse possession, the Court found the respondent's entry was permissive under an agreement without a completion date; the point at which permission was withdrawn was never established, his occupation was dogged by protests and interventions and was never peaceful, he was not in possession when he filed suit in 2011, and on any view twelve years had not run. The appeal was allowed, the trial judgment set aside, and the Originating Summons dismissed. Notably, the costs direction as drafted awards costs to the respondent despite the dismissal, an internal inconsistency on the face of the order.

Key legal issues

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01

Res judicata vis-à-vis the Land Disputes Tribunal and succession proceedings

Holding

The suit was not res judicata: the LDT lacked jurisdiction over registered-land proprietary disputes and the succession grant was revoked without determining proprietary rights.

Reasoning

The Tribunal's dispute concerned registered land and proprietary rights, matters beyond its jurisdiction; a decision by a body without jurisdiction cannot ground res judicata. The Meru Succession Cause awarded the respondent land as a beneficiary, but that grant was revoked, so no issue of proprietary rights was heard and finally decided. A probate court also lacks jurisdiction over adverse possession claims. The trial judge therefore did not err.

p. 5
02

Whether the respondent proved adverse possession

Holding

No. His entry was permissive under a sale agreement without a completion date, the date permission was withdrawn was never shown, and his occupation was contested and interrupted.

Reasoning

Adverse possession requires nec vi, nec clam, nec precario possession for twelve continuous years. The respondent entered with the deceased's permission under an agreement with no completion date; time could at earliest run from annulment of the grant in 2002, less than twelve years before the 2011 suit. He never demonstrated when he was evicted, was not in possession when filing, and the family's sustained protests meant his occupation was never peaceful. The claim failed on a balance of probability.

p. 7

Legal principles established

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  • A Tribunal or probate court without jurisdiction over the subject matter cannot found a plea of res judicata; jurisdiction is an essential test of res judicata.
  • A probate court lacks jurisdiction to determine disputes predicated on adverse possession.
  • Possession under permission of the owner is not adverse; time runs only from withdrawal of that permission, and possession must be continuous, peaceful and uninterrupted for twelve years.

Court orders

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  1. 1.The challenge to the judgment on the ground of res judicata is dismissed
  2. 2.The appeal is allowed; the judgment of the trial court is set aside
  3. 3.The respondent's Originating Summons dated 20th June 2011 is dismissed

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSections 13(1) and (2)
  • Court of Appeal RulesRule 31

Cases cited (7)

  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Authority v Kustron (Kenya) Limited
    [2000] 2EA 212
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Wambugu v Njuguna
    (1983) KLR 173
  • Francis Gicharu Kariri v Peter Njoroge Mairu, Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire v Swift Rutherfords & Co. Ltd
    (1980) KLR 10
On appeal from
Environment and Land Court (High Court)
null (Originating Summons dated 20th June 2011)
Jurisdiction invoked
First appeal under Rule 31 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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Cite this brief

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Cite this brief

Caselaw, "John & 8 others v Gikunda (Civil Appeal 168 of 2018) [2024] KECA 1221 (KLR)", Case Analysis (2024). Appeal from the Environment and Land Court (memorandum of appeal dated 14th September 2018); appeal number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1221/eng@2024-09-20

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