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ELCPartially AllowedMachakos ELC No. 334 of 2009 (Originating Summons dated 2nd October, 2009)· [2018] KEELC 3821 (KLR)

Joseph Mbatha Nzavi v Ambrose Mwikya Nzavi & 3 others [2018] KEELC 3821 (KLR)

Environment and Land Court
13 April 2018
OAO. A. Angote
1,823 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that living on land with the owner's permission cannot become legal ownership, but ordered the seller to refund the purchase money.

What this practically means

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Executive summary

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The Applicant brought an Originating Summons under Section 38 of the Limitation of Actions Act seeking a declaration that he was the lawful owner of Kangundo/Isinga/784 by adverse possession, permanent injunctions against the Respondents, and, in the alternative, a refund of Kshs. 350,000 paid to the 1st Respondent. The Applicant, the 1st Respondent's elder brother, testified that he had occupied and developed the suit land since 1978 when it was gifted to him for having educated the 1st Respondent, and that in 2007 he paid Kshs. 350,000 as purchase price when the 1st Respondent agreed to transfer the land. The 1st Respondent denied the gift, asserting that the Applicant occupied the land with his permission and that the Kshs. 350,000 was rent, although his letter of 20th November, 2008 confirmed a willingness to sell for Kshs. 350,000 and later to refund the money. The court held that adverse possession requires non-permissive occupation for twelve years inconsistent with the owner's enjoyment, and that since the Applicant was on the land with permission and under an attempted sale, time began to run only upon the 1st Respondent's repudiation of the oral sale agreement on 20th November, 2008. As the suit was filed on 2nd October, 2009, the statutory period had not elapsed. The declaration and injunction prayers were dismissed, but the alternative prayer for refund of Kshs. 350,000 was allowed with interest at court rates from the date of judgment until full payment. Each party was to bear his own costs.

Key legal issues

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01

Whether the Applicant was in adverse possession of the suit land since 1978

Holding

No. The Applicant's occupation was with the permission of the registered proprietor, and adverse possession could not run until the oral sale agreement was repudiated by the 1st Respondent's letter dated 20th November, 2008; less than twelve years elapsed before the suit.

Reasoning

The Applicant himself deponed that the land was gifted to him and that he occupied it with the 1st Respondent's consent, later attempting to purchase it in 2007. Following Wilson Katana and Jandu v Kirpal, permissive possession is not adverse. Only the 1st Respondent's repudiation of the sale by his letter of 20th November, 2008 started the limitation clock, and the suit filed on 2nd October, 2009 fell far short of the statutory twelve years.

p. 3
02

Whether the Applicant was entitled to a refund of the Kshs. 350,000

Holding

Yes. The 1st Respondent received the sum as purchase price and, having repudiated the oral sale agreement and offered in his letter of 20th November, 2008 to refund it, was bound to refund it.

Reasoning

The court found the 1st Respondent's own letter of 20th November, 2008 confirmed his willingness to sell the land for Kshs. 350,000 and, upon discovering a third party was the purchaser, to refund the purchase price. Having accepted the money and repudiated the agreement, the 1st Respondent could not retain it; the alternative prayer for refund was therefore allowed with interest.

p. 3

Legal principles established

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  • To succeed in adverse possession, the claimant must have made physical entry for twelve years, under a claim, non-permissively, with acts inconsistent with the owner's enjoyment of the soil
  • Possession with the permission of the owner, or under an agreement of sale or lease, cannot found a claim of adverse possession; time runs only from repudiation of the agreement

Court orders

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  1. 1.Dismissal of the prayers in the Originating Summons for a declaration that the Applicant is the owner of the suit land and for an order for permanent injunction
  2. 2.Allowance of the Applicant's alternative prayer for a refund of Kshs. 350,000 with interest at court rates from the date of Judgment until full payment
  3. 3.Each party to bear his own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38

Cases cited (3)

  • James Ritei vs. Harchi Tranjan & 2 others
    Machakos ELC No. 334 of 2009
  • Wilson Katana & 101 others vs. Salim Abdalar & Another
    (2015) eKLR
  • Jandu vs. Kirpal
    (1975) E.A 225
Jurisdiction invoked
Section 38 of the Limitation of Actions Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Joseph Mbatha Nzavi v Ambrose Mwikya Nzavi & 3 others [2018] KEELC 3821 (KLR)", Case Analysis (2018). Machakos ELC No. 334 of 2009 (Originating Summons dated 2nd October, 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3821/eng@2018-04-13

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