Saka Developers Limited v Mary Aoko Omondi [2018] KEELC 2829 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that adverse possession can apply to leasehold private land, and that a disappointed government party should appeal, not seek review.
What this practically means
#Executive summary
#Key legal issues
#Whether review lies on the basis of the alleged section 41(a)(i) error
No - the alleged error is one of law that would require argument, so it is not an error apparent on the face of the record; the proper remedy is appeal.
The court held that the application rested on points of law rather than facts. An alleged misapplication of law that requires argument and determination cannot be an error apparent on the face of the record. A party who believes the court reached a wrong decision by misapplying the law must take the matter on appeal rather than seek review. The court also found the Attorney General had no immediate sufficient interest since what was in dispute was the leasehold interest, not the reversionary interest.
Whether adverse possession applies to the leasehold suit property
Yes - the land is alienated private land under Article 64, not public land, so section 41's exclusion of government land does not apply.
Relying on sections 37, 38, 39 and 41 of the Limitation of Actions Act, the court reasoned that the Act applies to land previously under the Government Lands Act and Registered Land Act, the only exception being public land under section 41. The suit land was alienated government land, leased to the plaintiff, and thus private land under Article 64. The defendant had acquired prescriptive rights over the unexpired period of the lease, and the Attorney General had no sufficient interest in the property.
Legal principles established
#- The Limitation of Actions Act applies to registered land, with the exception of public land under section 41
- Adverse possession applies to alienated private leasehold land falling under Article 64 of the Constitution
- A party who alleges the court misapplied the law in the judgment should appeal rather than seek review
Court orders
#- 1.The application for review dated 23.8.2017 is dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Review jurisdiction over its own judgment (order cited not stated; application dated 23.8.2017)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saka Developers Limited v Mary Aoko Omondi [2018] KEELC 2829 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2829/eng@2018-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.