Saleh Muhsin Shigog v Augus M. Dishi & 18 others [2019] KEELC 1812 (KLR)

Environment and Land Court

4 July 2019

AOA. Omollo

1,645 words in judgment

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The bottom line

A Mombasa court ruled that land owned as Wakf property cannot be claimed through adverse possession, so the long-term occupants were evicted.

What this practically means

Executive summary

The plaintiff sued 19 defendants seeking a mandatory injunction to demolish structures, a permanent injunction against interference, eviction, a declaration that Plot No. 79/II/MN measuring 12.08 acres at Tudor, Mombasa is lawfully leased to him, general damages and costs. He pleaded that the land was leased to him by the Wakf Commissioners of Kenya from 1st September 1987 and that the defendants encroached in 2000. The defendants denied trespass and raised a limitation defence. The plaintiff testified and produced his lease, a certificate of postal search showing him as registered lessee, and rent and rates receipts. The 5th defendant, Ramadhan Ali Tua, testified that he had been caretaker, that his mother was permitted by the Wakf Commissioners to farm, and that the other defendants were already on the land; his evidence was found contradictory in material respects. The court found the defendants had not proved occupation predating 8th June 1951, the commencement of the Wakf Commissioners Act, and that Section 15 of Cap 109 bars acquisition of Wakf property by prescription or adverse possession. Since occupation with permission cannot be adverse, and no permission from the plaintiff was proved, the defendants were found to be occupying the land illegally. The court was satisfied the plaintiff had made out a good case and entered judgment in his favour as prayed in the plaint, with the judgment delivered at Mombasa on 4th July 2019 by A. Omollo J.

Key legal issues

Availability of the limitation/adverse possession defence against a claim over Wakf property

Holding

The defence of limitation is not available because Section 15 of the Wakf Commissioners Act (Cap 109) bars acquisition of Wakf property by prescription or adverse possession, and the defendants failed to prove their occupation predated the Act's commencement or was adverse.

Reasoning

The court held that the Wakf Commissioners Act commenced on 8th June 1951, and no evidence was adduced that the defendants' occupation began before that date. The 5th defendant admitted the Wakf Commissioners permitted his mother onto the land and that he was there on permission of the Chief Kadhi. Occupation with permission cannot be adverse, so the prescriptive defence fails both factually and legally.

p. 3

Whether the defendants' occupation of the suit land was lawful

Holding

In the absence of permission from the plaintiff, the defendants' occupation of the suit plot is illegal, entitling the plaintiff to judgment as prayed.

Reasoning

The defendants did not deny being on the land; their sole defence was limitation. The plaintiff produced the lease, certificate of postal search and receipts showing him as registered lessee from 1st September 1987, paying rent and rates. The 5th defendant's evidence was internally contradictory, and no permission from the plaintiff was proved for the defendants' occupation.

p. 3

Legal principles established

Titles to Wakf property cannot be acquired by prescription or adverse possession.

Court orders

1.Judgment entered in favour of the plaintiff as prayed in the plaint

Authorities

Legislation

Wakf Commissioners Act (Cap 109)Section 15
Civil Procedure RulesOrder 2 rule 4

Jurisdiction invoked: Original civil jurisdiction of the Environment and Land Court over the suit plot Plot No. 79/II/MN

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Saleh Muhsin Shigog v Augus M. Dishi & 18 others [2019] KEELC 1812 (KLR)", Case Analysis (2019). ELC No. 103 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1812/eng@2019-07-04

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