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ELCDismissed· [2020] KEELC 3697 (KLR)

Saade Ahmed Abdalla v Safari Kadenge & 3 others [2020] KEELC 3697 (KLR)

Environment and Land Court
23 January 2020
JOJ.O. Olola
2,601 words in judgment
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The bottom line

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A Kenyan landowner lost her plot because long-term occupants had occupied it openly for over 12 years, acquiring it by adverse possession.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Plot SR No. 2195 Takaungu (approx. 14.36 Ha) in Kilifi County since its transfer to her on 14th May 2007 by Hassanbhai Bin Nuru Bin Abdulkarim El-Bohra for Kshs 200,000/-, sued four Defendants for a permanent injunction, vacant possession, demolition of structures and eviction, alleging trespass and unauthorised construction. The Defendants admitted her registration but contended the conveyance passed no valid title and, by Counterclaim, sought declarations that each had acquired two acres by adverse possession, having been born and having lived openly, exclusively and without interruption on the land for over 30 years, with an order for sub-division and registration. At trial, the Plaintiff conceded the Defendants were among about 40 squatters on the land at purchase; the Chief's intervention persuaded most to leave but the Defendants refused. The court found the Defendants' occupation predated the purchase, was known to the vendor who never licensed it or sought eviction, and that the Plaintiff's allegation of recent invasion was false and misleading. Applying section 7 of the Limitation of Actions Act, the cause of action first accrued to the vendor more than 12 years before suit, and the Plaintiff took subject to the Defendants' overriding interests. Holding that the Defendants' possession was permanent, open, continuous, notorious, exclusive and hostile, the court dismissed the Plaintiff's suit with costs and entered judgment for the Defendants on their Counterclaim as prayed.

Key legal issues

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01

Whether the Plaintiff's claim for trespass and vacant possession was merited

Holding

It was not; the Defendants were in occupation before the Plaintiff purchased the land, and her allegation of recent invasion was false.

Reasoning

The Plaintiff conceded the Defendants were on the land when she bought the property in 2007 and was not granted vacant possession by the vendor. Her pleading that the Defendants had recently invaded the land contradicted her own evidence and that of PW2, who confirmed some 40 squatters were present at purchase. The Defendants' birth and upbringing on the land was not controverted.

p. 3
02

Whether the Defendants had acquired their respective portions by adverse possession

Holding

Yes; the Defendants' long, open, exclusive and hostile occupation extinguished the owner's title to those portions.

Reasoning

The Defendants were born on the land (1955, 1958, 1973, 1980), built homesteads, planted trees and cultivated their portions openly and exclusively for over 30 years. The vendor knew of and never licensed their occupation or sought eviction, and the cause of action first accrued to him more than 12 years before suit. Their conduct constituted an unmistakable assertion of hostile title.

p. 4

Legal principles established

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  • In a claim for adverse possession, the claimant must show continuous possession of the land for 12 years or more, open and notorious to the knowledge of the owner, asserting a hostile title.
  • Under section 7 of the Limitation of Actions Act, an action to recover land may not be brought after the end of 12 years from when the right of action accrued.
  • A purchaser of land with full knowledge of persons already in occupation takes subject to the overriding interests of those occupants.

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs
  2. 2.Judgment entered in favour of the Defendants as against the Plaintiff as prayed in the Defendant's Counterclaim dated 3rd December 2014 (declaration of adverse possession of their respective two-acre portions)

Authorities

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Legislation

  • Limitation of Actions ActSection 7
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim for land (Plot SR No. 2195 Takaungu, Kilifi County)

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, "Saade Ahmed Abdalla v Safari Kadenge & 3 others [2020] KEELC 3697 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3697/eng@2020-01-23

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