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ELCDismissedEnvironment and Land Appeal E032 of 2022· [2023] KEELC 19269 (KLR)

Sikengei v Wandiema

Environment and Land Court at Bungoma
28 July 2023
2,523 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Appellant, Joseph Jumanne Sikengei, appealed against the judgment of Hon. C.M Wattimah, Senior Resident Magistrate, delivered on 23 November 2022 in Sirisia SPM-ELC No. 07 of 2021, which allowed the Respondent's claim for injunction and a declaration that a 24 April 2003 sale agreement over 2 acres excised from parcel N.MALAKISI/W.SASURI/3590 was null and void, and dismissed the Appellant's counter-claim. The Appellant advanced six grounds, principally that the Respondent's claim was barred by limitation under sections 4(1)(a) and 7 of the Limitation of Actions Act, that he had been in open, peaceful and continuous possession for over 12 years, and that the claim for the unpaid balance of the purchase price was itself time-barred. The Respondent supported the trial judgment. The court, E.C Cherono J, applied the Court of Appeal's statement of the elements of adverse possession in Samuel Kihamba v Mary Mbaisi and held that because the Appellant took possession with the owner's consent under the sale agreement, he was estopped from claiming adverse possession; his remedies were specific performance or constructive trust, but he had not paid the Kshs.40,000 balance, so equity could not aid him. The court further held that the Appellant's non-compliance rendered the agreement voidable and null and void, and that the authorities cited by the Appellant were irrelevant and distinguishable. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Adverse possession by a purchaser in possession under a sale agreement

Holding

Possession taken with the owner's consent under a sale agreement cannot found adverse possession; the purchaser's remedies are specific performance or constructive trust

Reasoning

The court held that possession obtained by consent or permission of the landowner pursuant to a sale agreement estops the purchaser from claiming adverse possession, since the occupation is not nec vi, nec clam, nec precario. The purchaser's proper remedies are specific performance or a constructive trust, but only if he has performed his part of the bargain. The Appellant paid only Kshs.120,000 of Kshs.160,000 and did not prove payment of the balance, so equity could not aid him.

p. 5
02

Effect of non-compliance with the sale agreement and absence of Land Control Board consent

Holding

The 2003 sale agreement became null and void after the Appellant failed to pay the balance and obtain Land Control Board consent

Reasoning

The court found the Appellant did not comply with the terms of the 2003 sale agreement by failing to pay the outstanding Kshs.40,000 balance. Relying on the principle that non-compliance renders a contract voidable, the court concluded the agreement became null and void, and the Appellant could not benefit from an agreement he himself failed to honour. The authorities cited by the Appellant were held irrelevant and distinguishable.

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Limitation of actions defence raised by the Appellant

Holding

The limitation arguments failed because the Appellant's possession was permissive and the agreement was voided by his own default

Reasoning

The Appellant argued under sections 4(1)(a) and 7 of the Limitation of Actions Act that both the Respondent's contractual claim and any claim for recovery of land were time-barred. The court did not engage with the limitation periods directly, instead disposing of the appeal on the basis that possession was permissive and the agreement had become null and void through the Appellant's non-compliance, rendering the cited authorities irrelevant and distinguishable.

p. 5

Legal principles established

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  • A party who takes possession of land pursuant to a sale agreement, with the owner's permission, is estopped from claiming adverse possession
  • Where a party fails to comply with the terms of a contract, the contract becomes voidable at the instance of the opposite party

Court orders

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  1. 1.Appeal dismissed with costs

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)(a)
  • Limitation of Actions ActSection 7

Cases cited (4)

  • Maersk Kenya Limited v Murabu Chaka Tsuma
    (2017) eKLR

    Actions founded on contract cannot be brought after 6 years from accrual of cause of action

  • Dickson Ngige Ngugi v Consolidated Bank Ltd (Formerly Jimba Credit Corporation Limited & Another
    (2020) KLR

    Limitation period for recovery of land

  • Kilimanjaro Company Limited v Kenya Union of Commercial Food and Allied Workers
    (2019) eKLR

    Limitation bar on claims founded on contract

  • Samuel Kihamba v Mary Mbaisi
    (2015) eKLR, Kisumu Civil Appeal No. 27 of 2013

    Elements of adverse possession: nec vi, nec clam, nec precario and animus possidendi

On appeal from
Principal Magistrates Court at Sirisia
SPM-ELC No. 07 of 2021
Jurisdiction invoked
First appellate jurisdiction over subordinate court under the Environment and Land Court Act

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, "Sikengei v Wandiema", Case Analysis (2023). Environment and Land Appeal E032 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19269/eng@2023-07-28

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