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ELCDismissedNot stated in judgment (ELC suit, Mombasa)· [2022] KEELC 2921 (KLR)

Gulamali v Sary & 13 others (Environment & Land Case 46 of 2017) [2022] KEELC 2921 (KLR)

Environment and Land Court
16 June 2022
MSMunyao Sila
6,830 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Mombasa court dismissed a landlord's suit for vacant possession because occupants who stopped paying rent over 12 years earlier had acquired rights through adverse possession.

What this practically means

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Executive summary

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The plaintiff, registered owner since 2013 of Mombasa/Block XVI/323, purchased in 2012 from the Registered Trustees of the Mombasa Parsi Anjuman, sued 14 defendants for vacant possession, removal of structures, an injunction and security during execution, alleging they were tenants in default of ground rent. The defendants, occupants and their forebears for over 50 years, pleaded that in the late 1980s the Government directed occupants to purchase their plots through the District Treasury; they paid Kshs 30,000 (frontage) or Kshs 15,000 (interior) each and stopped paying rent. They raised the defence of limitation under Section 7 of the Limitation of Actions Act and, in the alternative, counterclaimed for compensation for their developments. The 7th defendant's case abated on death. The court found the defendants' evidence that they ceased paying rent in the 1980s unrebutted: the plaintiff called no evidence from the former owners and produced no rent records. Time therefore ran in the defendants' favour, the former proprietor's title was extinguished under Section 17, and the plaintiff's claim, accruing to a 2012 purchaser with notice of occupation, was time-barred. Relying on Gulam Mariam Noordin, Chevron v Harrison Charo and Murai v Wainaina, the court confirmed a limitation defence can found adverse possession but declined to order title, citing insufficient evidence of the extent and exclusivity of occupation, especially the 14th defendant's undelineated madrassa portion donated free of charge in 2004 for a charitable purpose, declared held in trust. The suit was dismissed with costs to the defendants; the counterclaim was dismissed without any order as to costs, with liberty to file a separate suit for title.

Key legal issues

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01

Whether the plaintiff's claim for vacant possession is barred by limitation

Holding

Yes; the defendants last paid rent more than 12 years before suit, so title of the former owner was extinguished under Section 17 and the claim under Section 7 is time-barred

Reasoning

The defendants testified they stopped paying rent in the 1980s after the Government directive to purchase plots. The plaintiff led no evidence to controvert this, did not call the former owners and produced no rent book or receipts. The pleadings in Mombasa SRMCC No. 2169 of 2002 showed rent, if any, last paid in 2002 - over 12 years before this 2017 suit. The court held the plaintiff's right of possession was extinguished and dismissed the suit against the 1st to 13th defendants.

p. 8
02

Whether a tenant can acquire title by adverse possession

Holding

Yes; a tenant at will or at sufferance may have time run in his favour once the tenancy is deemed determined and rent ceases

Reasoning

Relying on Moses v Lovegrove, Hayward v Challoner and Murai v Wainaina, and Section 12 of the Limitation of Actions Act, the court held that a tenancy at will is determined after one year and a periodic tenancy upon expiry of the last rent period, after which possession becomes adverse if uninterrupted and unpermitted for 12 years.

p. 9
03

Whether title should issue to the defendants on the defence of limitation alone

Holding

No; the court declined, leaving title to be pursued in separate proceedings

Reasoning

Though the Court of Appeal in Gulam Mariam Noordin and Chevron v Harrison Charo ordered title to issue despite no counterclaim, this court found insufficient evidence of the exact portions occupied and whether all occupants were sued. The 14th defendant's portion could only be held in trust, not by adverse possession. The court confined itself to dismissing the suit and left the parties liberty to file a separate suit.

p. 11
04

Whether the 14th defendant's madrassa portion can be recovered

Holding

No; the portion was donated free of charge for a charitable purpose which was fulfilled and is held in trust by the title holder

Reasoning

Letters of 19 October 2004 and 15 December 2004 from the former proprietors allocated a portion free of charge for a madrassa and orphanage. A charitable donation honoured by the donee cannot be taken back without compensation; the case against the 14th defendant could not stand.

Legal principles established

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  • A tenant whose last rent payment has expired may have time run in his favour for adverse possession once the period covered by the last rent payment lapses
  • A court may, at its discretion, either merely dismiss a time-barred claim or go further and order title to issue to a defendant relying on a defence of limitation, depending on whether all occupants and the extent of occupation are before the court
  • Land donated for a charitable purpose which has been fulfilled cannot be repossessed without compensation to the donee

Court orders

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  1. 1.Plaintiff's suit against the 1st to 13th defendants dismissed as time-barred
  2. 2.Case against the 14th defendant dismissed; the portion occupied by the madrassa declared held in trust by the title holder
  3. 3.Suit against all defendants dismissed with costs to the defendants
  4. 4.Counterclaim dismissed with no order as to costs
  5. 5.Leave granted to defendants or other occupants to file a separate suit for title to the land or any portion of it

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22Sections 7, 17, 38, 12(1)
  • Rent Restriction ActNot specified
  • Appellate Jurisdiction ActSection 3(2) (as cited in Gulam Mariam Noordin)
  • Limitation of Actions Act, 1939 (England)Section 4(3)

Cases cited (11)

  • Abdukrazak Khalifa Salimu vs Harun Rashid Khator & 2 Others
    (2018) eKLR
  • John H. Mramba (suing as the Administrator of the estate of Paul George Kenga) vs Kombo Chinando & 22 Others
    (2019) eKLR
  • Public Trustee vs Wanduru
    (1984) eKLR
  • Sisto Wambugu vs Njuguna
    (1983) eKLR
  • Murai vs Wainaina
    (1982) KLR 51
  • Chevron (K) Limited vs Harrison Charo
    (2016) eKLR
  • Hayward & Another vs Challoner
    (1967) 3 All ER 122
  • Gulam Mariam Noordin vs Julius Charo Karisa
    Civil Appeal No. 26 of 2015
  • Runda Coffee Estates vs Ujagar Singh
    (1966) EA 568
  • Moses vs Lovegrove
    1952 QB 538
  • Njuguna Ndatho
Jurisdiction invoked
Environment and Land Court jurisdiction over title, possession and occupation of land (Environment and Land Court Act; not expressly stated in judgment)

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, "Gulamali v Sary & 13 others (Environment & Land Case 46 of 2017) [2022] KEELC 2921 (KLR)", Case Analysis (2022). Not stated in judgment (ELC suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2921/eng@2022-06-16

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