Shavanji v Makomere & 2 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether adverse possession was established
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
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.
Whether the reliefs sought should issue
Refused - the plaintiff lost possession of all but the spot where his house stands before filing suit and did not demarcate that space
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.
Legal principles established
#- 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
#- 1.Dismissal of the plaintiff's case
- 2.No order on costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - original jurisdiction over land claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.