Shiramba v Sakayo & another
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff established adverse possession of Kakamega/Virembe/526
Adverse possession was not established; entry was permissive and no hostile assertion of title or dispossession for 12 years was proved
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.
Whether the second defendant's counterclaim for eviction and permanent injunction should be granted
Granted; as registered proprietor the second defendant is entitled to possession and peaceful use
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.
Legal principles established
#- 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
#- 1.The plaintiff/applicant's case is dismissed
- 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.A permanent injunction restraining the plaintiff, her agents, assigns or personal representatives from entering, working, interfering with or dealing with Kakamega/Virembe/526
- 4.The injunction to come into operation within 90 days from delivery of the judgment or upon the plaintiff vacating, whichever occurs earlier
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.