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ELCDismissedOriginating Summons dated 29th October 2013· [2016] KEELC 159 (KLR)

Saiqua Sultana Hassan Haroon & 2 others v Abdul Malik [2016] KEELC 159 (KLR)

Environment and Land Court
4 November 2016
SOS. Okong'o
2,653 words in judgment
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The bottom line

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The Environment and Land Court dismissed three sisters' claim to half of an Eastleigh plot, ruling that family permission and un-subdivided co-ownership defeat adverse possession claims.

What this practically means

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Executive summary

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The plaintiffs, daughters of the late Mohammed Aslam Khan, brought an Originating Summons under section 38 of the Limitation of Actions Act claiming to have acquired the defendant's one half undivided share of L.R. Number 36/1/509, Eastleigh, Nairobi, by adverse possession. The deceased and the defendant were registered as tenants in common in equal shares on 13th October 1976. The plaintiffs asserted that the deceased occupied the entire parcel until his death on 22nd September 2003, that they continued in occupation thereafter, paying rates, and that the defendant never entered the property. The defendant did not enter appearance despite substituted service, and the suit proceeded undefended on the evidence of the 1st plaintiff. The court identified the key issue as whether a co-tenant in common can claim another co-tenant's share by adverse possession. Relying on Gatimu Kinguru v Muya Gathangi and the Land Act, 2012 definition of tenancy in common, the court held that until a tenancy in common is severed by subdivision, each tenant owns the whole land, making it impossible to occupy adversely one co-tenant's undivided share. The court further held that the plaintiffs' occupation between 1976 and 2003 was permissive through their father, applying Jandu v Kirpal and Wilson Kazungu Katana. Even assuming limitation ran from the deceased's death, twelve years had not lapsed by 4th November 2013, rendering the suit premature. The evidence of occupation was also found wanting. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether occupation of land held under tenancy in common can be adverse to another co-tenant

Holding

No - until the tenancy in common is severed by subdivision, each tenant in common owns the whole land, the shares being unidentifiable, so occupation cannot be adverse to the other co-tenant's undivided share

Reasoning

The court relied on the Land Act, 2012 definition of tenancy in common and Gatimu Kinguru v Muya Gathangi, holding that without subdivision each tenant owns the whole parcel and no identifiable portion can be occupied adversely to one co-tenant only. It was therefore illogical to say the plaintiffs occupied only the defendant's portion.

p. 4
02

Whether the plaintiffs' occupation was permissive rather than adverse

Holding

Yes - between 1976 and 2003 the plaintiffs, as daughters of the deceased, occupied with the deceased's permission, and permissive possession cannot be adverse

Reasoning

Applying Jandu v Kirpal, Samuel Miki Waweru v Jane Njeri Richu and Wilson Kazungu Katana, the court held that possession with leave or licence is not adverse; time begins to run only when the licence is determined. The plaintiffs' occupation through their father could not be adverse to him or to the defendant.

p. 4
03

Whether time ran in the plaintiffs' favour after the deceased's death

Holding

No - even if limitation ran from the deceased's death on 22nd September 2003, twelve years had not lapsed by 4th November 2013 when the suit was filed

Reasoning

The court computed the limitation period from the date of the deceased's death and found that only about ten years had elapsed when the suit was filed on 4th November 2013, rendering the claim premature.

p. 4
04

Whether the plaintiffs proved actual occupation of the suit property

Holding

No - the evidence did not establish occupation; the property was undeveloped and the plaintiffs' testimony was vague

Reasoning

The 1st plaintiff resided in Texas, did not say where the other plaintiffs lived, did not describe the kiosks on the property or who erected them, and there was no evidence of residential premises. The court found it unclear how the plaintiffs could be believed to have occupied the property since 1976.

p. 3

Legal principles established

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  • Possession does not become adverse before the end of the period for which permission to occupy has been granted
  • Until a tenancy in common is severed by subdivision, each tenant in common owns the whole land and occupation by one co-tenant cannot be adverse to the other
  • A claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner

Court orders

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  1. 1.The suit is dismissed accordingly with no order as to costs

Authorities

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Legislation

  • Limitation of Actions Act (Cap. 22) Laws of Kenyasection 38
  • Limitation of Actions Act (Cap. 22) Laws of Kenyasection 17
  • Land Act, 2012definition of tenancy in common

Cases cited (7)

  • Salim vs. Boyd and Another
    [1971] EA 550
  • Kimani Ruchine & Another vs. Swift, Rutherford Co. Ltd. & another
    [1977] KLR 10
  • Wambugu vs. Njuguna
    [1983] KLR 172
  • Jandu vs. Kirpal
    [1975] E.A 225
  • Gatimu Kinguru vs. Muya Gathangi
    [1976] e KLR
  • Wilson Kazungu Katana & 101 Others vs. Salim Abdalla Backshwen & another
    [2015] e KLR
  • Samuel Miki Waweru vs. Jane Njeri Richu
    Civil Appeal No. 122 of 2001 (UR)
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap. 22) Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Saiqua Sultana Hassan Haroon & 2 others v Abdul Malik [2016] KEELC 159 (KLR)", Case Analysis (2016). Originating Summons dated 29th October 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/159/eng@2016-11-04

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