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Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 87 of 2018· [2023] KEELC 21161 (KLR)

Shiramba v Sakayo & another

Environment and Land Court
31 October 2023
1,933 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A woman who lived on land for 40 years lost it because she entered with the owner's permission, so her occupation never counted as adverse possession.

What this practically means

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Executive summary

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The plaintiff, sister-in-law of the first defendant, sought a declaration that she was proprietor of Kakamega/Virembe/526 by adverse possession. She claimed her late husband had exchanged the suit property with the first defendant under a written agreement, upon which her family settled on the suit property from 1973, developing it with trees and a permanent house. The second defendant, who purchased and was registered as proprietor in 2018, denied the claim, asserted the plaintiff was a trespasser, and counterclaimed for her eviction and a permanent injunction. The first defendant admitted allowing the plaintiff to occupy the land temporarily to raise her children after she separated from her husband. The court framed two issues: whether adverse possession was established and whether the reliefs sought should issue. Applying the Court of Appeal's test in Richard Wefwafwa Songoi v Ben Munyifwa Songoi, the court held that although the plaintiff had occupied the land for some 40 years, her entry was permissive, and possession by licence is antithetical to adverse possession. She did not prove when she began asserting hostile title, nor that the registered proprietors were dispossessed or had discontinued possession for the statutory 12 years. Nor did she prove the exchange was completed by registration; time runs from registration of the transfer. The claim was dismissed. The second defendant, as registered proprietor entitled to possession under Article 40 of the Constitution and Section 24 of the Land Registration Act, obtained eviction and a permanent injunction, with 90 days allowed for the plaintiff to vacate. Considering the family relationship, no order was made as to costs.

Key legal issues

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01

Whether the plaintiff established adverse possession of Kakamega/Virembe/526

Holding

Adverse possession was not established; entry was permissive and no hostile assertion of title or dispossession for 12 years was proved

Reasoning

The plaintiff entered in 1973 by permission of the first respondent pursuant to an exchange. Possession by licence cannot found adverse possession. The claimant had to show when she began asserting hostile title and that the proprietor was dispossessed or discontinued possession for 12 years. She offered no evidence that the exchange was completed by registration, so time never began to run.

p. 3
02

Whether the second defendant's counterclaim for eviction and permanent injunction should be granted

Holding

Granted; as registered proprietor the second defendant is entitled to possession and peaceful use

Reasoning

There was no dispute that the second defendant was the registered proprietor, having purchased from the first respondent. Under Article 40 of the Constitution and Section 24 of the Land Registration Act he is entitled to possession and peaceful use, so eviction and a permanent injunction were merited.

p. 3

Legal principles established

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  • Possession by licence of the proprietor is antithetical to adverse possession; time runs only from when the claimant asserts hostile title in denial of the registered proprietor's title
  • For an exchange of land, time for adverse possession runs from registration of the transfer of the exchanged property in favour of the other party
  • A registered proprietor is entitled to possession and peaceful use of the land under Article 40 of the Constitution and Section 24 of the Land Registration Act

Court orders

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  1. 1.The plaintiff/applicant's case is dismissed
  2. 2.The plaintiff to vacate Kakamega/Virembe/526 within 90 days from delivery of the judgment; in default an eviction order shall automatically issue
  3. 3.A permanent injunction restraining the plaintiff, her agents, assigns or personal representatives from entering, working, interfering with or dealing with Kakamega/Virembe/526
  4. 4.The injunction to come into operation within 90 days from delivery of the judgment or upon the plaintiff vacating, whichever occurs earlier
  5. 5.No order as to costs
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (land disputes); Article 40 and Section 24 of the Land Registration Act applied

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, "Shiramba v Sakayo & another", Case Analysis (2023). Environment & Land Case 87 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21161/eng@2023-10-31

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