Silas Sile Sisimwo & another v Susan Moss [2015] KEELC 477 (KLR)
The bottom line
#A Kenyan family who openly occupied land for 12 uninterrupted years won ownership, even though their late father fell short of the same deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether adverse possession can be founded on a licensee's occupation
No; time cannot run in favour of a licensee, so the deceased's occupation under the lease until 22/11/1984 could not found a claim of adverse possession
The deceased entered as a member of Museng Group under a lease expiring 22/11/1984. During the currency of the lease his occupation was permissive, as a licensee, and possession of a licensee is not adverse to the proprietor. The statutory 12-year period therefore could not begin to run while the licence subsisted, and the estate could not claim adverse possession through that period of occupation.
Whether the deceased's estate acquired title by adverse possession before his death in 1998
No; the deceased had at most 10 years' continuous occupation at his death, less than the statutory 12 years
The court computed the deceased's uninterrupted occupation from after the lease expired (and accounting for the 1988 interruption by the appeal, summarily rejected on 2/8/1988) and found only 10 years of continuous possession by 12/6/1998. Since the statutory period of 12 years was not met, the estate could not be declared owner by effluxion of time under any computation.
Whether the plaintiffs themselves acquired title by adverse possession from 1992
Yes; their open, continuous and uninterrupted possession since 1992 was adverse to the title of D.C.N. Moss, and the 12-year period elapsed before the defendant's 2009 succession cause
Following eviction orders of 16/12/1991 the plaintiffs and deceased's family enjoyed continuous, peaceful possession, erecting permanent structures. No suit for recovery was filed against them that would have stopped time running. The defendant's only step was the 2009 succession cause, by which time 12 years had passed and the title holder had been dispossessed.
Legal principles established
#- For adverse possession to succeed, possession must be adequate, continuous and exclusive - adequate in continuity, publicity and extent, and adverse to the proprietor
- Time does not run in favour of a licensee for purposes of adverse possession
- The filing of a suit for recovery of land stops time from running under Section 38 of the Limitation of Actions Act
- To defeat a title by dispossession, acts must be done which are inconsistent with the enjoyment of the soil for the purpose for which the owner intended to use it
Court orders
#- 1.Declaration that the plaintiffs have acquired 125 acres of D.C.N. Moss land by adverse possession
- 2.The plaintiffs to be registered as proprietors of the 125 acres, the defendant voluntarily signing documents to facilitate transfer, failing which the Deputy Registrar of the Court to sign all necessary documents
- 3.Plaintiffs to have costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the High Court (land claim; not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silas Sile Sisimwo & another v Susan Moss [2015] KEELC 477 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/477/eng@2015-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.