Khagali v Mutungati Farmers Cooperative Society (Enviromental and Land Originating Summons E012 of 2023) [2024] KEELC 4532 (KLR)
The bottom line
#A Kenyan court dismissed an employee's land ownership claim because living on land with the owner's permission never counts as adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the Preliminary Objection met the Mukisa Biscuits test of a pure point of law
The objection was dismissed because the issues raised were factual and required evidence
Applying Mukisa Biscuits Manufacturing Ltd v West End Distributors and Hassan Ali Joho, the court held that the grounds of the objection depended on contested facts about the nature of the Plaintiff's occupation, which could only be resolved by adducing evidence, and therefore did not qualify as a preliminary objection on a point of law.
Whether the Plaintiff's occupation of the suit land was adverse so as to found a claim in adverse possession
The occupation was permissive as an employee and was therefore not adverse
Relying on Wilson Kazungu Katana and Samuel Miki Waweru v Jane Njeri Richu, the court found that the Plaintiff entered and occupied the land with the Defendant's permission as an employee guard. Possession with the owner's consent is not adverse, and although her services were terminated in 2013, the twelve-year period had not run by the time of suit, and no title extract was annexed as Order 37 requires.
Compliance with Order 37 Rule 7(2) of the Civil Procedure Rules
The Plaintiff did not attach a title or extract of the registered land to the supporting affidavit, as required
The court observed that Order 37 requires a party claiming adverse possession to annex a copy of the title or an extract of the registered land in issue to the supporting affidavit. Although the court had earlier declined to strike out the summons on the preliminary objection because the grounds were factual, on the merits the court noted the absence of the title or extract as a further ground for dismissing the claim.
Legal principles established
#- A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained
- Possession under a licence or permission of the owner does not become adverse until the permission is terminated and the occupier remains in open and exclusive possession for twelve years thereafter
Court orders
#- 1.The Preliminary Objection dated 13th July, 2023 is dismissed with costs to the Plaintiff
- 2.The Originating Summons dated 30th August, 2022 is dismissed with costs to the Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes, hearing an adverse possession claim under Sections 7, 13, 17 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khagali v Mutungati Farmers Cooperative Society (Enviromental and Land Originating Summons E012 of 2023) [2024] KEELC 4532 (KLR)", Case Analysis (2024). Originating Summons dated 30th August, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4532/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.