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Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 103 of 2017· [2023] KEELC 17319 (KLR)

Shavanji v Makomere & 2 others

Environment and Land Court of Kenya
10 May 2023
1,900 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a 46-year land occupation claim because the occupier entered under a sale, not as a hostile possessor.

What this practically means

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Executive summary

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The plaintiff, Edward Shavanji, brought an amended Originating Summons against the first defendant (registered owner of Marama/Shirotsa/268) and the second and third defendants (purchasers of the resulting subdivisions 2219 and 2220), claiming the parcels by adverse possession. He asserted peaceful occupation of the suit property with his family since August 1971, extensive development, and interference by the first defendant from 2014-2015 when the property was transferred and subdivided. The defendants denied the claim: the first defendant said he inherited the land from his late father and that the plaintiff was a trespasser who had built a house thereon; the second and third defendants said they purchased their parcels in 2015 and took possession, leaving only the plaintiff's house spot. The court framed two issues: whether adverse possession was established and whether the reliefs should issue. Applying the settled principles, the court held that the burden lay on the plaintiff to prove peaceful, uninterrupted possession for 12 years without permission and with intention to dispossess. From PW2's evidence and the plaintiff's caution claiming purchaser's interest, the court inferred entry through a sale transaction; such entry is permissive, and time runs only from final payment of the purchase price, which the plaintiff never proved. Even absent a sale, mere construction of a house in a close family setting did not demonstrate animus possidendi. Further, the plaintiff had lost possession of all but his house spot before filing suit and did not demarcate that space. The suit was dismissed with no order on costs.

Key legal issues

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01

Whether adverse possession was established

Holding

Not established - entry was through a sale transaction (permission), no proof of payment of purchase price or 12 years' possession, and no intention to dispossess

Reasoning

The court found entry was likely through a sale from Makomere Akhamwa, based on PW2's evidence and the plaintiff's caution claiming purchaser's interest. A purchaser's possession becomes adverse only after final payment of the purchase price, which the plaintiff never proved. Even absent a sale, the close family relationship required clear evidence of intention to dispossess, which mere construction of a house did not supply.

p. 3
02

Whether the reliefs sought should issue

Holding

Refused - the plaintiff lost possession of all but the spot where his house stands before filing suit and did not demarcate that space

Reasoning

The suit was filed on 27 March 2017, by which time the second and third defendants were farming the whole land except the plaintiff's house spot. The plaintiff claimed the whole of the two subdivisions but offered no clear demarcation or size of the portion he occupied, so the reliefs could not issue.

p. 4

Legal principles established

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  • Entry and occupation pursuant to a sale agreement is by permission of the proprietor and does not amount to adverse possession; time runs from completion of payment of the purchase price
  • In a claim of adverse possession the burden lies on the plaintiff to prove peaceful and uninterrupted possession for 12 years without the proprietor's permission and with intention to dispossess
  • Mere construction of a house is not enough to establish animus possidendi, particularly in a close family setting

Court orders

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  1. 1.Dismissal of the plaintiff's case
  2. 2.No order on costs

Authorities

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Legislation

  • Limitation of Actions Actprovisions on adverse possession (referred to as 'the Act')

Cases cited (4)

  • Loise Nduta Itotia v Aziza Said Hamisi
    [2020] eKLR

    Restating the essentials of adverse possession

  • Kimani Ruchire vs Swift Rutherford & Co. Ltd.
    [1980] KLR 10

    Tenets of adverse possession - nec vi, nec clam, nec precario; continuous possession

  • Public Trustee v Wanduru Ndegwa
    [1984] eKLR

    Time for adverse possession runs from final payment of purchase price

  • Masambaga & 7 others v Malindi Holdings and Estate Limited
    (Civil Appeal 165 of 2019) [2022] KECA 782 (KLR)

    Factual possession (factum possessionis) and intention to possess (animus possidendi) must coincide continuously

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - original jurisdiction over land claims

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, "Shavanji v Makomere & 2 others", Case Analysis (2023). Environment & Land Case 103 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17319/eng@2023-05-10

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