Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 308 of 2019· [2022] KEELC 12814 (KLR)

Public Trustee (As the Administrator of the Estate of Darshan Singh Surein Singh (Deceased)) v Mudashi & 2 others

Environment and Land Court of Kenya
30 September 2022
3,171 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled that long occupation doesn't win land if you entered with the owner's permission as an employee.

What this practically means

#

Executive summary

#
The Public Trustee, as administrator of the estate of Darshan Singh Surein Singh (deceased), sued the Defendants for eviction from Bukhayo/Kisoko/950, alleging trespass. The Plaintiff's suit was dismissed for want of prosecution on November 11, 2021, leaving for determination only the Defendants' amended Counterclaim dated May 15, 2018, in which they sought a declaration of title by adverse possession and an order for transfer of the suit land. The Defendants claimed that in 1968 the deceased gave them possession of the land as consideration for work and services rendered by them and their father, and that they had occupied it openly, peacefully and continuously for over forty years, building houses, cultivating and burying relatives. The court applied the five-element test from Haro Yonda Juaje and found the Defendants satisfied the requirements of long, open and continuous occupation, corroborated by a site visit report. However, the claim failed on the element of non-permissive possession: the Defendants' own pleadings and testimony admitted that they occupied the land with the deceased's full consent and by virtue of employment. Relying on Wambugu v Njuguna, Delamere Estates, Wellington Lusweti Barasa, Muhu Holdings and Hughes v Griffin, the court held that a licensee, and particularly an employee residing on the employer's property, cannot acquire title by adverse possession while the permission subsists. The Counterclaim was disallowed with no order as to costs.

Key legal issues

#
01

Whether the Defendants' occupation was non-permissive so as to found adverse possession

Holding

The claim fails because the Defendants admitted their occupation was with the owner's permission and by virtue of employment

Reasoning

The court applied the five-element test in Haro Yonda Juaje. Although the Defendants satisfied the element of long, open and continuous occupation (over 40 years, evidenced by a site visit report, houses, cultivation and graves), the second element - non-permissive occupation - failed. Their pleadings and testimony admitted entry with the deceased's consent as consideration for work and services, making them licensees whose possession was not adverse.

p. 6
02

Whether an employee occupying land by virtue of employment can acquire it by adverse possession

Holding

No; such a person is a licensee and time does not run in their favour

Reasoning

The court was persuaded by the Plaintiff's authorities (Delamere Estates, Wellington Lusweti Barasa, Muhu Holdings) holding that an employee residing on the employer's property enters with permission, so occupation is not adverse. Citing Hughes v Griffin, a licensee has no adverse possession and time does not run in favour of a licensee.

p. 6

Legal principles established

#
  • Possession with the owner's consent is not adverse; time runs only when the licence is determined
  • An employee allowed to reside on the employer's property by virtue of employment cannot claim adverse possession

Court orders

#
  1. 1.The Defendants' Counterclaim dated May 15, 2018 is disallowed
  2. 2.No order as to costs

Authorities

#

Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38(1)
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (15)

  • Haro Yonda Juaje vs Sadaka Dzengo Mbauro & Another
    [2014] eKLR

    Five elements a claimant must prove for adverse possession

  • Muhu Holdings Ltd & 2 others vs Achina Nangomo & 27 others
    [2018] eKLR

    Employee occupying land by virtue of employment cannot claim adverse possession

  • Delamere Estates v Ndungu Njai & Others
    [2006] eKLR

    Employee's occupation of employer's property is permissive, not adverse

  • Wellington Lusweti Barasa and 75 others v Lands Limited & another
    [2014] eKLR

    Approval of the Delamere Estates principle on employees

  • Gulam Mariam Noordin v Julius Charo Karisa
    Civil Appeal No. 26 of 2015

    Adverse possession claims to be instituted by Originating Summons

  • Chevron (K) Ltd v Harrison Charo wa Shutu
    [2016] eKLR

    Procedure for adverse possession claims

  • Trust Bank Limited v Paramount Universal Bank Ltd & 2 others
    [2009] eKLR

    Unchallenged evidence and burden of proof

  • Auter Singh Bahra and Another v Raju Govindji
    HCCC No. 548 of 1998 (UR)

    Unsubstantiated pleadings where no evidence is called

  • Sisto Wambugu v Kamau Njuguna
    [1983] eKLR

    Owner must be dispossessed or discontinue possession for limitation to run

  • Mtana Lewa vs Kahindi Nala Mwagandi
    [2015] eKLR

    Definition and essentials of adverse possession

  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR

    Definition of adverse possession as non-permissive physical control

  • Mbira v Gachuhi
    [2002] 1 EALR 137

    Non-permissive, open, exclusive and adverse use for the statutory period

  • Ndiema Samburi Soti v Elvis Kimtai Chepkeses
    [2010] eKLR

    Occupation with consent is not adverse possession

  • Wambugu v Njuguna
    [1983] KLR 172

    Time runs against a licensee only when the licence is determined

  • Hughes v Griffin
    [1969] 1 WLR 23

    A licensee has no adverse possession; time does not run in favour of a licensee

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - implied; claim for adverse possession over registered land under the Limitation of Actions Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Public Trustee (As the Administrator of the Estate of Darshan Singh Surein Singh (Deceased)) v Mudashi & 2 others", Case Analysis (2022). Environment & Land Case 308 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12814/eng@2022-09-30

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