Siyani & another v Savannah Properties and Mortgages Limited & another (Environment & Land Case E016 of 2021) [2023] KEELC 823 (KLR)
The bottom line
#A Nairobi court ruled that 30 years of open, unpaid occupation gave two brothers ownership of Nairobi land — even though the land was under a bank charge.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs proved adverse possession of the suit properties
The plaintiffs proved adverse possession, having occupied openly, continuously and without permission for over 12 years since 1991 under a colour of right from their purchase agreement
The court applied the elements in Gabriel Mbui v Mukindia Maranya. The plaintiffs entered under a purchase agreement with a completion date of 31st September 1991, occupied openly and without secrecy, developed the properties with business offices, and paid rates and utility bills. The 1st Defendant's 1995 advocates' letter disclaiming privity of contract showed the occupation was non-permissive. Occupations continued unbroken for about 30 years, well beyond the statutory 12-year period, without interruption by the defendants.
Whether adverse possession can be raised against a chargee
Yes; a claim for adverse possession lies against both the proprietor and the chargee, and charging land does not stop time from running
Relying on Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court noted a charge confers only rights of realization of security, not rights of use. Following Benson Mukuwa Wachira and Kipkoech Arap Langat, charging or mortgaging land occupied by a person in adverse possession does not interrupt time; the adverse possession is an overriding interest to which the chargee takes subject. The 2nd Defendant having not defended, and possession having exceeded 12 years uninterrupted and with the defendants' knowledge, the claim succeeded on a balance of probabilities.
Legal principles established
#- A claim for adverse possession can lie against both the registered proprietor and the chargee; charging or mortgaging land in adverse possession does not interrupt the running of time.
Court orders
#- 1.The 1st and 2nd Plaintiffs declared to have become the legal owners entitled to adverse possession of over 12 years since 31st September 1991 of LR No 209/10488/26 and LR No 209/10488/29.
- 2.The 1st and 2nd Plaintiffs be registered as the proprietors of LR No 209/10488/26 and LR No 209/10488/29 in place of the 1st Defendant.
- 3.The original Grant No IR 40725 for LR No 209/10488 (the mother title) and the original transfers for the suit properties be dispensed with.
- 4.A partial discharge of charge dated February 20, 1989 by the 2nd Defendant registered against the suit properties be dispensed with.
- 5.Each party to bear his/its own costs.
- Jurisdiction invoked
- Sections 7, 9, 13, 17, 19(1) and 4, 37 and 38 of the Limitation of Actions Act and Order 37 Rule 7(1), (2) and (3) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Siyani & another v Savannah Properties and Mortgages Limited & another (Environment & Land Case E016 of 2021) [2023] KEELC 823 (KLR)", Case Analysis (2023). Originating Summons dated March 23, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/823/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.