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ELCDismissedELC Case No. 39 of 2019 (OS) (formerly Nairobi ELC 1064 of 2013)· [2021] KEELC 1978 (KLR)

Sankale Alfred Karasha v Siimon Joseph Karasha [2021] KEELC 1978 (KLR)

Environment and Land Court
16 September 2021
COCHRISTINE OCHIENG
2,587 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court refused to give a son ownership of his father's land because his occupation was by permission, not against the owner.

What this practically means

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Executive summary

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By an Originating Summons dated 3rd September 2013, Sankale Alfred Karasha sought a declaration that he had acquired Plot No. Ngong/4480/45 (formerly Ngong Township/Block 2/88), registered in the name of his father Simon Joseph Karasha, by adverse possession after running the 'Laiser Farmers Bar & Restaurant' there since 1990, together with registration as proprietor, directions for execution of transfer documents by the Registrar, and a temporary injunction against interference with the plot. The Respondent opposed, asserting a 99-year lease, a Certificate of Lease of 18th September 1996, and that he had developed the property in the 1960s and merely permitted his son, then unemployed, to run the business after he evicted other tenants, receiving rent for only three months. Each party called one witness and filed submissions citing authorities on adverse possession. The court framed three issues: occupation, entitlement to adverse possession, and costs. Applying Section 38 of the Limitation of Actions Act and authorities including Wambugu v Njuguna and Haro Yonda Juaje, the court held that adverse possession requires actual, open, continuous, exclusive and uninterrupted possession for at least twelve years, non-permissive and inconsistent with the true owner's rights. It found the Applicant's entry permissive and his activities consistent with the Respondent's established use; the Applicant also did not dispossess the Respondent, who used the title to secure and discharge a loan. The Originating Summons was found unmerited and disallowed, each party bearing its own costs given the father-son relationship.

Key legal issues

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01

Whether the Applicant established adverse possession over the suit property

Holding

The claim failed because the Applicant's entry and continued occupation were permissive and not inconsistent with the registered owner's use

Reasoning

Both parties admitted the Applicant had been on the property since 1990 running the business and that the land was registered in the Respondent's name. However, the Applicant admitted in cross-examination that he was given the property by his father to run the business, that he was not resident there, and that he bought only the business, not the land. His occupation with permission could not ripen into adverse possession, and he did not dispossess the Respondent, who even charged the title to secure a loan that he later discharged.

p. 3

Legal principles established

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  • For adverse possession to mature into title, possession must be actual, open, continuous, notorious, exclusive and uninterrupted for at least twelve years, non-permissive and inconsistent with the true owner's rights
  • Possession under leave and licence does not become adverse until the licence is determined

Court orders

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  1. 1.The Originating Summons dated 3rd September 2013 is disallowed/unmerited
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1) and (2)
  • Civil Procedure RulesOrder 37 Rules 1-19
  • Registered Land Act (Cap 300, repealed)null

Cases cited (15)

  • Wambugu V Njuguna
    (1983) KLR 173
  • Mbira Vs Gachuhi
    (2002) 1 EALR 137
  • Jandu V Kirpal & Another
    (1975) EA 255
  • Koech Kangogo Vs Chebii Yego
    (2018) eKLR
  • Nyaga Rungu Vs Stanley Nyaga Kuvuta
    (2020) eKLR
  • Gabriel Mbui V Mukindia Maranya
    (1993) eKLR
  • Mtana Lewa V Kahindi Ngala Mwagandi
    (2015) eKLR
  • Munyaka Kuna Company Limited V Bernado Vicezo De Masi (The Administrator of the Estate of Domenico De Masi – Deceased)
    (2018) eKLR
  • R V Oxfordshire County Council ex P. Sunningwell Parish Council
    (2000) 1AC 335 at 350
  • Wilson Kazungu Katana & 101 Others V Salim Abdalla Bakshwein & another
    (2015) eKLR
  • Golf Range Limited V Registered Trustees of National Olympics Committee & 3 Others
    (2018) eKLR
  • Daniel Kimani Ruchine & Others versus Swift Lotherford & Co. Ltd and Anor
    (1977) eKLR
  • Wambugu Versus Njuguna cited in Karuntimi Raiji Vs. M'makinya
    1983 KLR 174; (2013) eKLR
  • Haro Yonda Juaje V Sadaka Dzengo Mbauro & Another
    (2014) eKLR
  • Mwinyi Hamisi Ali Vs The Attorney General & Another
    [1997] eKLR
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap 22) and Order 37 Rules 1-19 of the Civil Procedure Rules

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, "Sankale Alfred Karasha v Siimon Joseph Karasha [2021] KEELC 1978 (KLR)", Case Analysis (2021). ELC Case No. 39 of 2019 (OS) (formerly Nairobi ELC 1064 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1978/eng@2021-09-16

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