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ELCAllowedELCA Case No. 14 of 2019· [2020] KEELC 2994 (KLR)

Ramadhan Wanzala Omoro v County Government of Kakamega [2020] KEELC 2994 (KLR)

Environment and Land Court
28 April 2020
NMN.A. Matheka
1,340 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled a county government on land with the owner's permission cannot claim adverse possession, and must vacate.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kakamega against the judgment of a Senior Resident Magistrate delivered on 17 April 2019 in Mumias MCL&E Cause No. 128 of 2018. The appellant, the registered proprietor of L.R. No. North Wanga/Kholera/353, alleged that in the early 1990s he gave a portion of the plot to the defunct County Council of Kakamega for construction of Shibanze Komoro Dispensary on the understanding that he would be compensated for the construction costs and the value of the excised land. Compensation never materialised despite valuation and negotiations, and he sued for eviction. The respondent, successor of the defunct councils under section 33 of the sixth schedule to the Constitution, argued the suit was time-barred under the Limitation of Actions Act and filed without leave. The appellant relied on Sisto Wambugu v Kamau Njuguna and Samuel Miki v Jane Njeri Richu; the respondent relied on Chevron (K) Ltd v Harrison Charo wa Shutu. The court, applying Samuel Miki Waweru v Jane Njeru Richu and Jandu v Kirpal, held that the respondent occupied the land with the appellant's leave and licence under the compensation arrangement, so possession was never adverse and the twelve-year limitation period under Section 7 did not apply. Guided by Mwanasokoni v Kenya Bus Service on the appellate court's duty to re-evaluate evidence, the court found the trial decision was not judiciously arrived at, allowed the appeal, and ordered the respondent to vacate the suit land within six months, with costs to the appellant.

Key legal issues

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01

Whether the respondent had established adverse possession so as to invoke the limitation period

Holding

The respondent was in possession with the appellant's leave and licence, so adverse possession and Section 7 limitation did not apply

Reasoning

The evidence showed the appellant, the registered proprietor, gave a portion of plot 353 to the defunct County Council of Kakamega in the 1990s for construction of a dispensary on the understanding he would be compensated. The trial magistrate's own judgment acknowledged the letter of 8/5/2016 confirming the plaintiff constructed the dispensary at his cost and that payment had been discussed. Since occupation was permissive under this arrangement, possession was never adverse and the twelve-year limitation period could not run against the appellant.

p. 2
02

Whether the appellate court should interfere with the trial court's findings

Holding

The court found the decision was not judiciously arrived at and allowed the appeal

Reasoning

Relying on Mwanasokoni v Kenya Bus Service, the court noted it is duty bound to revisit and evaluate the evidence and reach its own decision, while appreciating that an appellate court will not ordinarily interfere with findings of fact unless they were based on no evidence, on misapprehension of it, or on wrong principles. The court found the trial magistrate failed to require the respondent to adduce evidence to counter the demand letter, and concluded the decision was not judiciously arrived at.

p. 2

Legal principles established

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  • A claim of adverse possession cannot succeed where possession is held with the owner's permission or under an agreement
  • Where possession is by leave and licence, the limitation period under Section 7 of the Limitation of Actions Act does not begin to run

Court orders

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  1. 1.The respondent is to vacate from the suit land L.R. No. North Wanga/Kholera/353 within the next 6 (six) months from the date of this judgement
  2. 2.Costs to the appellant

Authorities

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Legislation

  • Constitution of KenyaArticle 40, section 33, sixth schedule
  • Limitation of Actions ActSections 7 and 8

Cases cited (5)

  • Sisto Wambugu Vs Kamau Njuguna
    (1983) ELR 172
  • Samuel Miki Waweru vs. Jane Njeru Richu
    Civil Appeal No. 122 of 2001
  • Chevron (K) Ltd vs. Harrison Charo wa Shutu
    Malindi CA No. 19 of 2016
  • Jandu v Kirpal
    [1975] EA 225
  • Mwanasokoni v Kenya Bus Service
    (1982 - 88) 1 KAR 870
On appeal from
Senior Resident Magistrate's Court, Mumias
MCL&E Cause No. 128 of 2018
Jurisdiction invoked
Appellate jurisdiction over appeals from the magistrates' court (Environment and Land Court at Kakamega)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Ramadhan Wanzala Omoro v County Government of Kakamega [2020] KEELC 2994 (KLR)", Case Analysis (2020). ELCA Case No. 14 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2994/eng@2020-04-28

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