Isaac Maobe Okeri v Magero Nyaosi Alias Maute Okeri [2016] KEELC 738 (KLR)
The bottom line
#A Kenyan court struck out an adverse possession claim because a buyer living on land with the seller's permission cannot claim ownership until that permission ends.
What this practically means
#Executive summary
#Key legal issues
#Authenticity of the sale agreement relied on
The agreement bearing attestation date 13th June 2014 repeated three times, while claimed to be of 1980, is inconsistent and valueless as evidence of an agreement
The court found the attestation date of 13th June 2014 appeared three times in the agreement and could not be accidental or a mistake, questioning the document's authenticity. The applicant claimed the agreement was made in 1980 but the advocate's attestation and counter-signature bore a 2014 date. The court held that in the face of such inconsistencies the agreement would be valueless as evidence.
Whether occupation under a sale agreement can be adverse
Occupation pursuant to a sale agreement is permissive and cannot be adverse until the contract is repudiated, rescinded or permission withdrawn
Relying on Wambugu v Njuguna and Samuel Miki Waweru v Jane Njeri Richu, the court held that possession under a sale agreement is with the vendor's permission, and adversity begins only upon determination or repudiation of the contract. No repudiation was shown. The court also rejected the misconception that voidance of a land sale agreement for want of land control board consent makes possession immediately adverse.
Requirement of continued possession at time of suit
A claimant seeking adverse possession must be in possession; where the registered owner has regained possession, there can be no adverse possession
Sections 37 and 38 of the Limitation of Actions Act envisage that the party seeking a declaration of ownership by adverse possession is in fact in possession. The applicant admitted the respondent regained possession in April 2015. The court therefore found the applicant could not sustain the claim and agreed the suit was frivolous and an abuse of process, warranting striking out.
Legal principles established
#- Where possession is with the consent or permission of the vendor under a sale agreement, possession does not become adverse until the contract is rescinded or terminated or permission withdrawn
- Sections 37 and 38 of the Limitation of Actions Act contemplate that a party seeking declaration of ownership by adverse possession must be in possession; where the registered owner has regained possession, there can be no adverse possession
Court orders
#- 1.The respondent's originating summons filed on 11th May 2015 is struck out
- 2.Costs of the struck-out originating summons and of the Notice of Motion dated 15th October 2015 awarded to the applicant/respondent
- Jurisdiction invoked
- Original jurisdiction under sections 37 and 38 of the Limitation of Actions Act (Cap 22) over a claim for declaration of title by adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Maobe Okeri v Magero Nyaosi Alias Maute Okeri [2016] KEELC 738 (KLR)", Case Analysis (2016). Originating Summons dated 11th May 2015 (and Notice of Motion dated 15th October 2015), Kisii. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/738/eng@2016-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.