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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 2306 (KLR)

Hanspal (Suing as the son and administrator Ad litem of the estate of Inderjit Singh Han) v Hanspal & another (Being sued as the daughters and legal representatives of the estate of the late Davinder Singh Hanspal(Deceased)) (Environment & Land Case 1218 of 2013) [2022] KEELC 2306 (KLR)

Environment and Land Court
12 May 2022
12,028 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~48 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a family living in someone else's registered property for decades gained no ownership rights because they stayed with permission.

What this practically means

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Executive summary

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The Plaintiff, administrator of the estate of the late Inderjit Singh Hanspal, sued the legal representatives of the late Davinder Singh Hanspal for eviction, a permanent injunction, mesne profits and damages over L.R No. 209/7496, Manyani Road, Lavington, Nairobi, registered in Inderjit's name since 1973. The Defendants admitted the registration but claimed Davinder and his family had occupied the property openly and peacefully since 1977, acquiring it by adverse possession, and alternatively that Inderjit held it in trust for Allied Concrete Works Limited (later Alcon International Limited), whose funds allegedly purchased and developed it. By counterclaim they sought declarations of adverse possession or of a resulting/constructive trust and an order for transfer. The court first excluded the Plaintiff's deed of settlement and settlement emails as inadmissible without-prejudice negotiations, and excluded the WhatsApp messages for want of a certificate under Sections 65(8) and 106B of the Evidence Act. On the merits, the court held that Inderjit's registered title was absolute and indefeasible, no fraud having been pleaded. The trust claim failed: there was no certificate of incorporation, no memorandum and articles, no company resolutions, and no proof that company funds paid the purchase price - the deposit receipt was issued to Inderjit personally. On adverse possession, Davinder had entered with Inderjit's permission, the property housed various relatives, and Inderjit stayed there whenever in Kenya until February 2013, retaining constructive possession; there was thus no dispossession until 2013. The counterclaim was accordingly dismissed. Mesne profits were awarded based on PW3's unchallenged valuation, using the 2013 monthly rent of Kshs.245,345 over 107 months. Judgment was entered for the Plaintiff: eviction within 90 days, a permanent injunction, mesne profits of Kshs.26,251,915/=, and costs with interest.

Key legal issues

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01

Indefeasibility of the registered title of Inderjit Singh Hanspal

Holding

The Plaintiff was entitled to the prayers in the plaint; no fraud or misrepresentation was pleaded against the registered proprietor

Reasoning

The suit property was registered in Inderjit's name in 1973. Under Section 23(1) of the Registration of Titles Act (replicated in Section 26(1) of the Land Registration Act, 2012), such title is conclusive and indefeasible. The Defendants never pleaded fraud or misrepresentation in the transfer, so no challenge to the title lay. The court adopted the Court of Appeal's reasoning in Dr. Joseph N. K. Arap Ng'ok.

p. 15
02

Whether Inderjit held the suit property in trust for Alcon International Limited and its shareholders

Holding

No trust was established; the claim failed

Reasoning

The Defendants produced no certificate of incorporation, memorandum and articles, or resolutions of Allied Concrete Works Limited relating to the suit property. The alleged shareholding was internally contradictory (Alcon Holdings allegedly a shareholder from 1971 yet incorporated in 1976). The deposit receipt was issued to Inderjit personally and there was no proof the balance cheque came from a company account. Building approval plans named Inderjit as owner/developer with Allied Contractors Limited as mere agent. A trust could not be presumed.

p. 17
03

Whether the Defendants acquired title by adverse possession

Holding

Counterclaim dismissed; adverse possession not proved

Reasoning

Davinder entered the property with Inderjit's permission, which negates adverse possession. The Plaintiff's parents stayed on the property whenever they visited Kenya until 2013, so Inderjit retained actual or constructive possession and was never dispossessed. Possession was never exclusive to Davinder's family. Dispossession occurred only in 2013 when Inderjit was barred, which is when time could start running - far short of the 12 years required by the date of suit and judgment.

p. 17
04

Mesne profits

Holding

Awarded at Kshs.245,345 per month for 107 months, totalling Kshs.26,251,915/= from February 2013

Reasoning

Having found the Defendants in wrongful possession from February 2013, the Plaintiff was entitled to mesne profits. PW3's valuation report was unchallenged - the Defendants engaged no competing expert. However, since PW3 never inspected the interior, the court used the 2013 monthly rent of Kshs.245,345 rather than the current Kshs.400,000, multiplied over 107 months to the date of judgment.

p. 19
05

Admissibility of settlement communications and WhatsApp messages

Holding

The deed of settlement and email negotiations were inadmissible under Section 23(1) of the Evidence Act; the WhatsApp messages were inadmissible for want of a certificate under Sections 65(8) and 106B

Reasoning

The deed of settlement and emails of February 2020 were made in furtherance of settlement negotiations and are protected even without a 'without prejudice' heading. The WhatsApp messages, being electronic records, required a certificate of electronic record signed by a person responsible for the device; none was produced.

Legal principles established

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  • A registered proprietor's title is absolute and indefeasible and can only be challenged on grounds of fraud or misrepresentation to which the proprietor is a party
  • Occupation and use of land per se does not give rise to title by adverse possession; dispossession and discontinuance of possession by the owner must be proved
  • A licencee's actual possession is constructive possession by the licensor, defeating an adverse possession claim
  • Adverse possession requires occupation that is open, without force and without licence or permission of the owner, per the maxim nec vi, nec clam, nec precario
  • Courts will not imply a trust except in cases of absolute necessity; the intention of the parties to create a trust must be clearly determined
  • Out-of-court settlement negotiations are inadmissible even if not headed 'without prejudice'

Court orders

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  1. 1.An order directing the Defendants, their agents and/or servants to vacate the suit property LR NO 209/7496, Manyani Road Lavington Nairobi within Ninety (90) days from the date of judgment and surrender it to the Plaintiff and the heirs and beneficiaries of the late Inderjit Singh Hanspal; in default the Plaintiff to use lawful means to evict them
  2. 2.An order of permanent injunction restraining the Defendants and their agents from interfering with the Plaintiff's and the heirs of the late Inderjit Singh Hanspal's entry, possession and occupation of the suit property
  3. 3.Mesne profits of Kshs.26,251,915/= being the rent from February 2013
  4. 4.Costs of the suit and interest
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land L.R No. 209/7496, Nairobi

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, "Hanspal (Suing as the son and administrator Ad litem of the estate of Inderjit Singh Han) v Hanspal & another (Being sued as the daughters and legal representatives of the estate of the late Davinder Singh Hanspal(Deceased)) (Environment & Land Case 1218 of 2013) [2022] KEELC 2306 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2306/eng@2022-05-12

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