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ELCPartially AllowedOriginating Summons dated March 23, 2021· [2023] KEELC 823 (KLR)

Siyani & another v Savannah Properties and Mortgages Limited & another (Environment & Land Case E016 of 2021) [2023] KEELC 823 (KLR)

Environment and Land Court
9 February 2023
2,521 words in judgment
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The bottom line

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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

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Executive summary

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This was an Originating Summons dated March 23, 2021 brought under Sections 7, 9, 13, 17, 19(1), 4, 37 and 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, in which the plaintiffs sought declarations of adverse possession of LR No 209/10488/26 and LR No 209/10488/29, registration as proprietors in place of the 1st Defendant, and orders nullifying and discharging a charge dated February 20, 1989 in favour of the 2nd Defendant. The plaintiffs deponed that their family business, Siyani Enterprises, purchased the suit properties from HA Halai & Co Limited with a completion date of 31st September 1991, took vacant possession, built offices, and paid rates and utility bills for about 30 years without the defendants' permission or interruption. Neither defendant entered appearance despite substituted service. The court framed three issues and applied the elements from Gabriel Mbui v Mukindia Maranya, finding the entry was under a colour of right, non-permissive, open, exclusive and continuous beyond the 12-year statutory period. On the charge, the court relied on Co-operative Bank v Kangethe Njuguna and Benson Mukuwa Wachira to hold that adverse possession lies against both proprietor and chargee, and that charging land does not interrupt time. The Originating Summons was allowed: the plaintiffs were declared entitled to adverse possession, ordered registered as proprietors, the mother title and transfers dispensed with, the partial discharge dispensed with, and each party ordered to bear its own costs.

Key legal issues

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01

Whether the plaintiffs proved adverse possession of the suit properties

Holding

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

Reasoning

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.

02

Whether adverse possession can be raised against a chargee

Holding

Yes; a claim for adverse possession lies against both the proprietor and the chargee, and charging land does not stop time from running

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.A partial discharge of charge dated February 20, 1989 by the 2nd Defendant registered against the suit properties be dispensed with.
  5. 5.Each party to bear his/its own costs.

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 9, 13, 17, 19(1), 4, 37 and 38
  • Civil Procedure RulesOrder 37 Rule 7(1), (2) and (3)
  • Land ActSection 2
  • Registered Land Act, Cap 300Section 30(f)

Cases cited (4)

  • Gabriel Mbui vs Mukindia Maranya
    [1993] eKLR
  • Co-operative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 others
    [2017] eKLR
  • Benson Mukuwa Wachira vs Assumption Sisters of Nairobi Registered Trustees
    (2016) eKLR
  • Kipkoech Arap Langat & Another vs Kipngeno Arap Laboso
    Kericho HCCC No 124 of 2004 (OS)
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

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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, "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.