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ELCDismissedOriginating Summons dated 4th March 2014 (consolidated with ELC No. 313 of 2014)· [2024] KEELC 1396 (KLR)

Fernandes v Allen; Fernandes (Interested Party) (Enviromental and Land Originating Summons 267 of 2014) [2024] KEELC 1396 (KLR)

Environment and Land Court
14 March 2024
8,511 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a woman's claim to an apartment she had lived in for over a decade, holding that permissive occupation cannot ripen into ownership.

What this practically means

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Executive summary

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The Plaintiff filed an originating summons in 2014 seeking a declaration that Apartment Number 7, Block B on LR No. 1870/IV/198, Royal Residency, Rhapta Road, Westlands, belongs to her by adverse possession, her registration as owner, and permanent injunctions. She claimed that she and her ex-husband (the Interested Party) purchased the property in 2001 through the Respondent, a family friend, using funds from foreign accounts she allegedly operated on their behalf, and that she had occupied the apartment continuously since December 2001, paying outgoings and effecting improvements. The Respondent maintained she purchased the property with her own funds, that the Interested Party acted for her under a power of attorney, and that she permitted the couple to occupy before issuing notices to vacate and filing an eviction suit (ELC No. 313 of 2014, consolidated herewith). The court framed three issues: adverse possession, ownership by purchase, and costs. It held that apartment units fall within the statutory definition of land, so the claim was not defeated for being over a sublease. However, the Plaintiff's entry was permissive and premised on purchase; her occupation never became hostile, and time did not run against a registered owner acting through an authorized agent. The adverse possession claim had not matured. On purchase, the executed agreement, receipt and registered title were all in the Respondent's name, no authority to operate accounts was proved, and no fraud was pleaded or proved to defeat her indefeasible title under section 26(1) of the Land Registration Act. No resultant or constructive trust arose. The originating summons was dismissed with costs to the Respondent.

Key legal issues

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01

Jurisdiction over adverse possession claim relating to an apartment held under a sublease

Holding

The court has jurisdiction; an apartment unit on the land falls within the statutory definition of land

Reasoning

The Respondent argued adverse possession applies only to land and not to apartments held under a sectional sublease. The court held that Article 260 of the Constitution and section 3 of the Registered Land Act define land to include buildings and things permanently affixed, so apartment units fall within the concept of adverse possession, vesting jurisdiction in the ELC under Article 162(2)(b) and section 13 of the ELC Act.

p. 9
02

Whether the Plaintiff's occupation was adverse and hostile

Holding

No; entry was permissive and premised on a claimed purchase, and occupation never turned hostile

Reasoning

Entry in December 2001 was based on an alleged purchase, and the conveyancing was still active, with negotiations to include the three parties' names in the lease, until registration in 2009. The Interested Party acted under a power of attorney from the Respondent, so occupation through an agent could not be hostile. No evidence showed exclusive interests adverse to the Respondent before the divorce proceedings.

p. 10
03

Whether the Plaintiff proved ownership by purchase

Holding

No; the executed agreement, receipt and registered title were all in the Respondent's name and no trust arose

Reasoning

The only executed agreement was between the Respondent and the developer; the purchase receipt and lease were in the Respondent's name. Documents showed dealings between the Interested Party and the Respondent but no authority for her to operate accounts on their behalf, and the banker's draft of 12,003 pounds was far below the purchase price. Courts cannot rewrite a written contract based on conduct, and no resultant or constructive trust was established.

p. 13
04

Whether the Respondent's registered title could be defeated

Holding

No; under section 26(1) of the Land Registration Act the title is prima facie indefeasible and no fraud was pleaded or proved

Reasoning

The court invoked section 26(1) of the Land Registration Act (formerly section 143 of the Registered Land Act) providing that a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party. Order 2 of the Civil Procedure Rules requires fraud to be specifically pleaded; none was pleaded or proved.

p. 14

Legal principles established

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  • A claim for adverse possession cannot be brought together with a claim for ownership by purchase, since adverse possession presupposes acknowledgment of the registered owner's title
  • Time for adverse possession does not run against an authorized agent occupying on behalf of the registered owner
  • Improvements and payment of utility bills do not confer ownership rights
  • Apartments on a sectional/sub-lease development fall within the definition of land for purposes of adverse possession, so the ELC has jurisdiction

Court orders

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  1. 1.The Plaintiff's originating summons is dismissed
  2. 2.Costs of the suit are awarded to the Respondent

Authorities

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Legislation

  • Limitation of Actions ActSection 7 (as read with Sections 37(a) & 38); also Sections 13, 17
  • Civil Procedure Rules, 2010Order 37 rule 7; Order 7(2); Order 2
  • Constitution of Kenya, 2010Articles 162(2)(b) and 260
  • Registered Land Act (Cap 300, repealed)Section 3; formerly section 143
  • Environment and Land Court ActSection 13
  • Evidence Act (Cap 80)Sections 107 to 109
  • Land Registration Act (No. 3 of 2012)Section 26(1)
  • Sectional Properties Act (repealed)not specified
  • Registration of Titles Actdefinition of land

Cases cited (17)

  • Kairu v Gacheru
    (1988) KLR 297
  • Githu v Ndeete
    (1984) KLR 776
  • Raila Amolo Odinga & Another v. IEBC & 2 others
    (2017) eKLR
  • Maweu v. Liu Ranching and Farming Cooperative Society
    1985 KLR 430
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
  • Samuel Miki Waweru v. Jane Njeru Richu
    Civil Appeal No. 122 of 2001 (Unreported)
  • Ravji Karsan Sanghani v Pamur Investment Limited
    [2021] eKLR
  • Ramco Investments Limited v Uni-Drive-In Theatre Limited
    [2014] eKLR
  • Kasuve v Mwaani Investments Ltd & 4 Others
    [2004] 1 KLR 184
  • Wambugu v Niuguna
    (1983) KLR 173
  • Muchambi Ndwiga and Ano. v Octavian Mwaniki Kariuki
    (2021) eKLR
  • Gabriel Mbui v Mukindia Maranya
    (1993) eKLR
  • Catherine Koriko & 3 Others v Evaline Rosa
    (2020) eKLR
  • Njue v Matiabe & 3 others
    [2023] KEELC 17361 (KLR)
  • Odd Jobs v Sunday
    (1970) EA 476
  • Mamta Peeush Mahajan v Yashwant Kumari Mahajan
    [2017] eKLR
  • G. Percy Trentham Ltd v Archital Luxfer Ltd
    [1993] 1 Lloyds Rep 25
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of 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, "Fernandes v Allen; Fernandes (Interested Party) (Enviromental and Land Originating Summons 267 of 2014) [2024] KEELC 1396 (KLR)", Case Analysis (2024). Originating Summons dated 4th March 2014 (consolidated with ELC No. 313 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1396/eng@2024-03-14

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