Omollo v Ngune (Environment and Land Appeal E006 of 2023) [2024] KEELC 7431 (KLR)
The bottom line
#A Kenyan court ruled that someone living on land with the owner's permission cannot claim ownership until that permission is formally ended and 12 years pass.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's occupation of the suit property was permissive or adverse
The occupation was permissive; the Respondent entered under a licence granted by Sila Amoke Metha, the previous owner, and later admitted he was given authority to build
The Respondent's own pleadings and cross-examination showed that Sila Amoke Metha allowed and pointed out to him the portion on which to build his homestead. The Appellant produced a 1992 agreement granting temporary occupation to the Respondent's father. Permissive possession is inconsistent with adverse possession, and possession does not become adverse until the licence ends. The Appellant formally terminated the licence by notice dated 15th May 2020.
When time began to run for purposes of adverse possession
Time began to run on 15th May 2020 when the licence was formally terminated by the Appellant's advocates demanding vacant possession
Under the principles in Gabriel Mbui v. Mukindia Maranya, a licensee cannot claim title by adverse possession while the licence subsists; the limitation period does not run against the owner until the licence has ended. Even if the licence had been withdrawn in 2013 as PW3 claimed, the Respondent would still not have completed 12 years by April 2022 when the Originating Summons was filed.
The duty of a first appellate court
The court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
Relying on Kenya Ports Authority v. Kuston (Kenya) Limited, Verani t/a Kisumu Beach Resort, Selle v. Associated Motor Boat Co. Ltd and Abok James Odera, the court restated that a first appeal is a rehearing on the evidence. The court will not interfere with findings of fact unless they were not based on evidence, were based on a misapprehension of the evidence, or the court acted on wrong principles.
Legal principles established
#- Permissive occupation is inconsistent with adverse possession; time for adverse possession does not run until the licence has ended
- A claimant for adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period
- A first appellate court must re-evaluate the evidence while making due allowance for not having seen or heard the witnesses
Court orders
#- 1.The judgment of the lower court delivered on 14th July 2023 and the decree extracted therefrom on 15th September 2023 are set aside and substituted with an order dismissing the Respondent's Originating Summons dated 31st March 2022
- 2.The Appellant shall have the costs of the lower court suit and the appeal
- On appeal from
- Winam Principal Magistrate's Court (lower court)
- Winam SPMELC No. E010 of 2022 (O.S)
- Jurisdiction invoked
- First appeal to the Environment and Land Court against the judgment of the lower court in Winam SPMELC No. E010 of 2022 (O.S)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omollo v Ngune (Environment and Land Appeal E006 of 2023) [2024] KEELC 7431 (KLR)", Case Analysis (2024). Winam SPMELC No. E010 of 2022 (O.S), Appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7431/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.