Leanard Otwori Juma v Francis Ongaki Mamboleo [2022] KEELC 803 (KLR)
The bottom line
#A Kenyan court ruled that occupying land with the owner's permission never becomes ownership, no matter how many years you stay.
What this practically means
#Executive summary
#Key legal issues
#Whether permissive occupation can mature into adverse possession
It cannot; occupation entered into and maintained with the owner's permission, including a licence assigned from parents to son, remains permissive and does not become adverse until the licence is determined
The court found as an undisputed fact that the Plaintiff's late parents entered the land with the Respondent's express permission to cultivate it, and that the Plaintiff took over that licence on their deaths. The essential element of nec precario was therefore negated by the Plaintiff's own evidence. Citing Waweru v Richu, Wanje v Saikwa, Benjamin Kamau Murima and Mbira v Gachuhi, the court held that permissive or consensual occupation is not adverse possession and that the licence was never terminated.
Whether the licence under which the Plaintiff held the land was ever determined
The Plaintiff failed to demonstrate that the licence was terminated, so his possession never became adverse
The demand letter of 13/01/2021 came after the suit period relied upon and the Plaintiff conceded he entered with consent. The court held that the burden lay on the occupier to show dispossession of the proprietor or discontinuance of the proprietor's possession, neither of which was proved. The Respondent never lost possession; non-use of land by an owner is not discontinuance.
Ownership of the Eucalyptus trees on the suit land
The trees form part and parcel of the land under the maxim quicquid plantatur solo, solo cedit, and belong to the landholder
Although neither party prayed for the trees, the court declined to leave the question in abeyance to avoid future conflict. Applying Said Abdalla Budzo v Tiomin (K) Limited and Jane Awuor Ondiege v Ali Yusuf Malumbo, it held that trees affixed to the soil belong to the land and, by extension, to the holder of the title.
Legal principles established
#- A claim for adverse possession cannot succeed where the claimant is in possession with the permission of the owner
- There is no adverse possession where land is occupied under a licence until the licence has been determined
- Occupation derived from the proprietor in the form of permission, agreement or grant is not adverse; only occupation not so derived is adverse
- Whatever is affixed to the soil belongs to the soil (quicquid plantatur solo, solo cedit); trees planted on land belong to the land and its title holder
Court orders
#- 1.The Originating Summons is dismissed
- 2.Costs of the suit awarded to the Defendant
- 3.Declaration that the Eucalyptus trees on L.R. No. ISOGE/KINENI SCHEME/202 form part and parcel of the land, applying the maxim quicquid plantatur solo, solo cedit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court, original jurisdiction over land); adverse possession claim by originating summons under the Limitation of Actions Act (implied from the pleadings in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Leanard Otwori Juma v Francis Ongaki Mamboleo [2022] KEELC 803 (KLR)", Case Analysis (2022). ELC Case No 1 of 2021 (O.S) (formerly Kisii ELC Case No. 3 of 2021 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/803/eng@2022-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.