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ELCPartially AllowedNot stated in the judgment text provided· [2020] KEELC 775 (KLR)

Argos Furnishers Limited v Samuel Musila & 37 others [2020] KEELC 775 (KLR)

Environment and Land Court (High Court, Machakos)
30 October 2020
5,169 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A land buyer who knew traders occupied the plot before purchase lost the land to those traders through adverse possession, despite holding a registered title.

What this practically means

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Executive summary

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The Plaintiff, a company registered in 1984, bought parcel Machakos Town Block II/221 from the 1st Defendant, Samuel Musila, in February 1997 for Kshs. 3,300,000 and was registered as proprietor. It sued for removal of temporary kiosk structures, an injunction against occupation, and general damages for trespass, alleging misrepresentation that the plot was vacant. The 2nd to 38th Defendants, small-scale traders, counter-claimed for a declaration of title by adverse possession, alleging allocation of the plot (formerly Plot No. 909/546) by Masaku Urban Council in about 1969, occupation since 1970, and construction of kiosks by the 1st Defendant as their contractor. They produced Council minutes of 1974 and 1977 directing the 1st Defendant to surrender the irregularly acquired plot, receipts for licence fees paid to the Council, and evidence of the 1st Defendant's secret registration in 1974. The court found the Defendants occupied nec vi, nec clam, nec precario, were never tenants of the 1st Defendant, and that their prescriptive rights crystallised 12 years after his 1974 registration. The 1st Defendant's 1997 eviction suit (HCCC No. 126 of 1997, dismissed on 29th May, 2003) came too late. The Plaintiff, having known of the occupants before purchase, was not a bona fide purchaser without notice, and its title was extinguished by section 7 of the Limitation of Actions Act. The court dismissed the Plaintiff's suit with costs, allowed the Counter-claim, declared the Defendants owners by adverse possession, ordered cancellation of the Plaintiff's registration and registration of the Defendants, and issued a permanent injunction against the Plaintiff.

Key legal issues

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01

Whether the 2nd to 38th Defendants proved adverse possession of the suit property

Holding

Yes - they occupied the land openly, continuously and without force from 1970, paying licence fees to the Council, and never paid rent to the 1st Defendant; their title crystallised 12 years after the 1st Defendant's registration in 1974

Reasoning

The court found the Defendants were allocated the plot by the Council in about 1969/1970, built kiosks through the 1st Defendant as contractor, and paid licence fees to the Council as early as 1971. Having never been tenants of the 1st Defendant and having occupied nec vi, nec clam, nec precario, their possession was adverse to the registered proprietor. The 1997 suit by the 1st Defendant interrupted possession only after 12 years had lapsed.

p. 6
02

Whether the Plaintiff's registered title prevails over the Defendants' prescriptive rights

Holding

No - the Plaintiff knew of the occupants before purchase, was not a bona fide purchaser without notice, and its title, like its predecessor's, was extinguished by section 7 of the Limitation of Actions Act

Reasoning

PW1 admitted the kiosks and occupants were on the land when the Plaintiff bought it in February 1997 and that he did not know when they took occupation. The 1st Defendant's title had already been extinguished by 1997, so he transferred nothing of value. The Plaintiff's certificate of title under section 26 of the Land Registration Act could not defeat rights that had already accrued by prescription.

p. 6
03

Whether the Defendants' claim was barred or defeated by non-joinder of the Council or failure to challenge the 1st Defendant's ownership

Holding

The Defendants' prescriptive rights had accrued before the transfer to the Plaintiff and could not be defeated by the transfer; the Court of Appeal's characterisation of the Defendants as licensees or tenants at will was addressed in submissions but the court rested its decision on the evidence of adverse possession

Reasoning

The Plaintiff argued the Defendants never challenged the 1st Defendant's ownership and did not enjoin the Council. The court however found that the Defendants' occupation was adverse and continuous from 1970, that the Council's 1974 and 1977 minutes confirmed the 1st Defendant's irregular acquisition, and that by 1997 the 1st Defendant had no title left to transfer.

p. 6

Legal principles established

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  • Time for adverse possession against a registered proprietor runs from the date the proprietor is registered, and where 12 years lapse, the proprietor's title is extinguished and the adverse possessor may be registered under section 38(1) of the Limitation of Actions Act
  • A transferee who knows of occupants on land before purchase cannot be a bona fide purchaser for value without notice, and takes subject to prescriptive rights
  • Occupation is adverse where it is nec vi, nec clam, nec precario, and an interruption that occurs only after 12 years does not defeat a claim already crystallised

Court orders

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  1. 1.The Plaintiff's Amended Plaint is dismissed with costs
  2. 2.A declaration that the 2nd to 38th Defendants have acquired title to parcel of land known as Machakos Town Block II/221 by reason of adverse possession
  3. 3.An order that the Plaintiff's name be cancelled from the register for Machakos Town Block II/221 and the said land be registered in the names of the 2nd to 38th Defendants or their representative(s) forthwith
  4. 4.A permanent injunction restraining the Plaintiff, its agents, servants and/or representatives from selling, transferring, charging, entering, developing or in any way interfering with Machakos Town Block II/221
  5. 5.The Plaintiff to pay the costs of the suit and the Counter-claim
Jurisdiction invoked
Original civil jurisdiction of the High Court over land claims, including claims under sections 7 and 38(1) 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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Cite this brief

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Cite this brief

Caselaw, "Argos Furnishers Limited v Samuel Musila & 37 others [2020] KEELC 775 (KLR)", Case Analysis (2020). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/775/eng@2020-10-30

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