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ELCPartially AllowedCivil Suit No. 265 of 1996 (consolidated with Civil Suit No. 266 of 1996)· [2021] KEELC 4428 (KLR)

Kenatco Transport Co. Ltd v Samuel Gikaru Njoroge (Suing on Behalf of the Estate of the late Geoffrey Gikaru Njoroge) & another [2021] KEELC 4428 (KLR)

Environment and Land Court
11 February 2021
CYC.K. Yano
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 Mombasa court ruled that employees and tenants who occupy land with permission cannot claim ownership through adverse possession, and must vacate within 60 days.

What this practically means

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Executive summary

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The Environment and Land Court at Mombasa (C.K. Yano, J) delivered judgment in two consolidated suits, ELC No. 265 of 1996 (the lead file) and ELC No. 266 of 1996, in which Kenatco Transport Co. Ltd (in receivership) sued the estates of its former employees for vacant possession of Plots MN/VI/2360 and MN/VI/2362 at Port Reitz, Mombasa, and mesne profits from 1st November 1983. The defendants counterclaimed for declarations of title by adverse possession, arguing that they or their predecessors stopped paying rent in or about 1977 and that the plaintiff's claim, filed in 1996, was time barred. The plaintiff's sole witness, a receiver manager from National Bank of Kenya, testified that the charged properties were sold in exercise of the chargee's statutory power of sale and transferred to Wanje Holdings Limited. The court framed two questions: whether the plaintiff proved entitlement to vacant possession and mesne profits, and whether the defendants proved adverse possession. It held that the defendants entered and remained in occupation under a licence by virtue of employment and as rent-paying tenants; since no evidence showed when or whether the tenancy was determined, possession never became hostile, and refusal to pay rent alone does not found adverse possession. The bank having validly exercised its power of sale, Wanje Holdings' title was indefeasible. Mesne profits were assessed at the contractual rent of Kshs 800 per month because the valuation report did not state a fair market rent. The counterclaims were dismissed; the defendants were given 60 days to vacate, failing which eviction orders would issue, with mesne profits from 1st November 1983 and costs to the plaintiff borne jointly and severally by the defendants.

Key legal issues

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01

Whether the defendants' occupation became adverse to the plaintiff's title

Holding

No - the defendants entered and remained under licence as employees and rent-paying tenants; without proof of termination of the tenancy, possession never became hostile

Reasoning

The court found it undisputed that the defendants or their predecessors entered the premises by virtue of employment and paid rent until about 1977. Relying on the permissive-possession rule, it held that refusal to continue paying rent does not make occupation adverse absent evidence that the tenancy was determined. Occupation can be either with permission or adverse, never both.

p. 5
02

Whether the plaintiff was entitled to vacant possession notwithstanding that the suit properties had been sold to Wanje Holdings Limited

Holding

Yes - the plaintiff was previously registered owner and the bank validly exercised its statutory power of sale; the defendants, having failed in adverse possession, remained rent-paying tenants in arrears

Reasoning

The court found the chargee's power of sale under Section 96 of the Land Act had been exercised and Wanje Holdings Limited was an innocent purchaser for value whose title was indefeasible. The defendants' claim having failed, the plaintiff was entitled to the plaint prayers, though PW1 had conceded the final prayers were overtaken by the sale.

p. 6
03

Whether mesne profits were payable and how they should be assessed

Holding

Yes, from 1st November 1983 at Kshs 800 per month, the rent last paid under the subsisting tenancy, until vacant possession

Reasoning

Applying the definition of mesne profits under Section 2 of the Civil Procedure Act and the Rajan Shah principle that mesne profits compensate wrongful occupation, the court found the valuation report did not state a fair market rent. It therefore assessed mesne profits at the contractual rent the defendants last paid, since the tenancy had neither been amended nor terminated.

p. 6

Legal principles established

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  • Possession under a licence or by virtue of employment is permissive and cannot found a claim in adverse possession
  • Adverse possession must be proved as a fact and cannot be assumed from mere exclusive possession
  • Mesne profits are compensation for wrongful occupation and are ordinarily measured by reasonable rent

Court orders

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  1. 1.That Samuel Gikaru Njoroge and Margaret Njeri Gicho and/or their agents and servants shall within 60 days of the date of this judgment vacate the parcel of land known as L.R. No. MN/VI/2360 and MN/VI/2362; upon default the registered proprietors shall be at liberty to evict them and eviction orders to issue
  2. 2.Mesne profits awarded to the plaintiff against the defendants from 1st November 1983 at a flat rent rate of Kshs 800 per month until date of judgment and until vacant possession is given
  3. 3.The prayers sought by the defendants in their counterclaims in ELC 265/1996 and ELC 266/1996 dismissed
  4. 4.Costs of the consolidated suits awarded to the plaintiff to be borne by the defendants jointly and severally

Authorities

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Legislation

  • Land ActSection 96
  • Limitation of Actions Act Cap 22 Laws of KenyaSection 7; Section 12
  • Civil Procedure ActSection 2

Cases cited (20)

  • Wanje Holdings Limited V National Bank of Kenya Limited
    ELC No 168 of 2015
  • Samuel Miki Waweru V Jane Njeri Richu
    Civil Appeal No 122 of 2001
  • Jandu V Kirpal
    (1975) EA 225
  • Sophie Wanjiku Kimani V Jane Mwihaki Kimani
    ELC No 490 of 2010
  • Cornelius Nyabuti Mogaka V Fredrick Nyambuti Mogaka
    ELC No 595 of 2010
  • James Maina Kinya V Gerald Kwandaka a.k.a Gerald Michael Kwendeka
    ELC No 323 of 2017 (O.S)
  • M'ikiara M'rinkanya and another V Gilbert Kabeere M'mbijiwe and another
    CACA 124 of 2008
  • Bellamy V Sabine
    (1857) 1 De J 566
  • Mawji V US International University and another
    (1976) KLR 185
  • Wambugu V Njuguna
    (1983) KLR 172
  • Kipketer Togom V Isaac Ciprriano
    (2012) EKLR
  • Public Trustee and Beatrice Muthoni V Kamau Wanduru
    CACA 73 of 1982
  • Kweyu V Omuto
    (1990) KLR 709
  • Mtana Lewa V Kahindi Ngala Mwangandi
    (2015) eKLR
  • Hughes V Griffin
    (1969) All ER 460; (1996) 1 WLR 23
  • Delamere Estate V Ndugu Njai & Others
    (2006) eKLR
  • Wellington Lusweti Barasa & 75 others V Lauders Limited & Another
    (2014) eKLR
  • Mistry Valji v Janendra Raichand & 2 others
    [2016] eKLR
  • Invergue Investments v Hacketh
    (1995) 3 All ER 842
  • Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over suits relating to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Kenatco Transport Co. Ltd v Samuel Gikaru Njoroge (Suing on Behalf of the Estate of the late Geoffrey Gikaru Njoroge) & another [2021] KEELC 4428 (KLR)", Case Analysis (2021). Civil Suit No. 265 of 1996 (consolidated with Civil Suit No. 266 of 1996). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4428/eng@2021-02-11

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