Presbyterian Foundation v General of the Salvation Army [2018] KEELC 495 (KLR)

The suit property has a public school on it. Under section 55 and the Fourth Schedule of the Basic Education Act No. 14 of 2013, the BOM is a body corporate capable of suing and being sued, and section 43(1) includes sponsored schools among public schools. The Applicant only plays a managerial/sponsorship role, holds no right of ownership on any Ministry of Lands document, and it is the school, not the Applicant, that has been in occupation pursuant to a grant by the Council.

Section 41(a)(i) of the Limitation of Actions Act excludes government land from acquisition of title by adverse possession. Article 62(1)(b) of the Constitution classifies land lawfully held, used or occupied by any State organ as public land. The land belonged from the beginning to the government through the Meru County Council, which reserved it for the school, and the Council remains registered co-owner. A claim of full and exclusionary ownership by either party is misconceived.

The Respondent was registered as proprietor only in 2002 and suit was filed in 2008, so 12 years had not elapsed. Further, adverse possession requires hostile occupation inconsistent with the owner's enjoyment; here the school occupied the land after it was reserved by the Meru County Council with express permission, and the Applicant manages it as sponsor/manager, a role contractual in nature and therefore incapable of being adverse.

The Meru County Council is a registered owner of the suit property and was never made a party. Granting orders to the Applicant would greatly prejudice the Council, which has not been heard. The court declined to make such orders, noting the County Government of Tharaka Nithi is the Council's successor.