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ELCDismissedKisumu HCC No. 62 of 1991 (Originating Summons dated January 15, 1991)· [2022] KEELC 3939 (KLR)

Martins v Ram (Environment & Land Case 43 of 2019) [2022] KEELC 3939 (KLR)

High Court of Kenya
5 August 2022
AOAntony Ombwayo
5,350 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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The High Court dismissed a 31-year-old adverse possession claim because the occupier was a tenant, but she stays on as a protected tenant.

What this practically means

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Executive summary

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This judgment determines an originating summons filed on January 15, 1991 by Joe Louis Martin (since deceased) seeking registration as lessee of Kisumu Municipality/Block 7/261 on the basis of adverse possession under sections 37 and 38(1) of the Limitation of Actions Act (Cap 22), claiming occupation since 1971. Ex parte orders of August 11, 1992 granting the claim were set aside by the High Court on February 6, 2002, and by orders of October 23, 2012 the originating summons was deemed a plaint, with the applicant's widow, Sarah Anyiso Martins, substituted and the matter set down for viva voce hearing. The plaintiff maintained that the deceased entered the premises in 1971 and occupied adversely, openly and uninterrupted. The defendant, the registered proprietor, countered that the deceased entered in 1983 as a tenant of the defendant's agent, Mr MV Desai, later acting as caretaker, relying on a letter dated 3/5/1988 from LG Menezes Advocates and a Rent Restriction Tribunal case dismissed on March 16, 1990. The court, applying Wambugu v Njuguna, Mtana Lewa v Kahindi Ngala Mwagandi and Mbira v Gachuhi, found the deceased's occupation permissive and consensual as tenant and caretaker, incapable of grounding adverse possession. It held that the 12-year period began running only on 16/3/1990, so the 1991 suit was premature. The suit was dismissed with costs, but the plaintiff was declared a caretaker and protected tenant under section 4 of the Rent Restriction Act (Cap 296), to remain in possession until the court orders otherwise. The judgment was delivered electronically at Kisumu on August 5, 2022 owing to COVID-19 directions.

Key legal issues

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01

The character of the deceased's entry into and occupation of the suit property

Holding

The court found that Joe Martins entered the suit property as a tenant in 1983 under the defendant's agent MV Desai and later acted as caretaker; his own 1988 letter through LG Menezes confirmed the tenancy

Reasoning

The court relied on the letter dated 3/5/1988 from LG Menezes Advocates acknowledging that the deceased was given a tenancy by Mr Desai in 1983 at a monthly rent of Kshs 1,050, and on the pending Rent Restriction Tribunal case No. 80 of 1988 dismissed on 16/3/1990 for want of prosecution, both demonstrating tenancy and caretakership rather than adverse possession.

p. 7
02

Commencement of the limitation period for adverse possession

Holding

Time began to run on 16/3/1990 when the Rent Restriction Tribunal suit was dismissed, so the originating summons filed in 1991 was premature

Reasoning

Because the deceased remained a tenant and caretaker until at least the dismissal of the Rent Restriction Tribunal case in 1990, his possession was permissive until then. The court held that the 12-year period required for prescriptive rights began running only on 16/3/1990 and stopped when the plaintiff filed this suit, meaning the statutory period had not been exhausted.

p. 9
03

Whether the plaintiff proved the ingredients of adverse possession

Holding

The plaintiff failed to demonstrate non-permissive possession on a balance of probabilities and the suit failed

Reasoning

Applying Wambugu v Njuguna, Mtana Lewa v Kahindi Ngala Mwagandi and Mbira v Gachuhi, the claimant had to prove non-permissive, non-consensual, open, notorious, exclusive and adverse possession for 12 years. The plaintiff's possession was permissive and consensual as tenant and caretaker, so the claim could not stand.

p. 9
04

Status of the plaintiff's continued occupation

Holding

The plaintiff is a caretaker and protected tenant under section 4 of the Rent Restriction Act and cannot be evicted except by order of the court

Reasoning

Although the adverse possession claim failed, the court recognized the plaintiff's occupation under the rent-restriction regime, leaving her in possession as a protected tenant until the court orders otherwise.

p. 9

Legal principles established

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  • Possession that is permissive and consensual, such as that of a tenant or caretaker, is incapable of grounding a claim in adverse possession
  • Where occupation is derived from the proprietor by permission or agreement, it is not adverse; and a person occupying with the owner's consent cannot claim adverse possession
  • The essential prerequisites of adverse possession are that possession is neither by force, stealth nor under licence of the owner, and it must be adequate in continuity, publicity and extent

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.The plaintiff is found to be a caretaker and protected tenant under section 4 of the Rent Restriction Act (Cap 296) and shall remain in possession as a tenant and shall not be evicted from the suit land until the court so orders
  3. 3.The suit is dismissed with costs to the defendant

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 7
  • Limitation of Actions Act (Cap 22)Section 13(1), (2), (3)
  • Limitation of Actions Act (Cap 22)Section 38
  • Limitation of Actions Act (Cap 22)Sections 37 and 39(1) (as invoked by the defendant)
  • Evidence Act (Cap 80)Sections 107, 108, 109 and 111
  • Rent Restriction Act (Cap 296)Section 4

Cases cited (4)

  • Benjamin Kamau Murima and others vs Gladys Njeri
    CA No. 213 of 1996 (Nrb) (unreported)
  • Wambugu vs Njuguna
    [1983] KLR 172
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR, Malindi App No. 56 of 2014
  • Mbira v Gachuhi
    (2002) 1 EALR 137
Jurisdiction invoked
Section 38 of the Limitation of Actions Act (Cap 22) - application to the High Court for an order that a claimant be registered as proprietor by adverse possession

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Martins v Ram (Environment & Land Case 43 of 2019) [2022] KEELC 3939 (KLR)", Case Analysis (2022). Kisumu HCC No. 62 of 1991 (Originating Summons dated January 15, 1991). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3939/eng@2022-08-05

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