LawAfrica -Hot From The Bench

Adverse Possession

In this month's Hot From the Bench LawAfrica's Charles Kanjama looks at the law of Adverse Possession and its application in Land Law today. Subscribers to LawAfrica Law Reports will be able to access the decisions cited below on www.lawafrica.com.

The Limitation of Actions Act is one of those small-sized statutes in our laws which advocates can ignore only at their peril. In contrast, the Kenyan law of land is spread over a whole gamut of statutes, with elaborate provisions and different regimes that leave all but the seasoned legal practitioner irredeemably baffled.

Adverse possession has been defined to mean “possession inconsistent with the title of the owner. But not for instance possession under licence from the owner or by way of trust on his behalf. There must be denial of the owner’s title in one form or another for possession to be adverse.” (Mutiso v Mutiso 2001).

In the 1980’s, the primary use of adverse possession was by the equitable purchaser without legal title in land. In Public Trustee v Wanduru (1984) the purchaser of land had failed to obtain title before bringing the suit for adverse possession. Madan JA gave the leading judgment and held that the purchaser’s widow had been in continuous open exclusive and uninterrupted adverse possession of the land since the moment of sale and not 3 months later when failure of Land Control Board consent made the sale void for all purposes. He held, “Provisions of the Land Control Act have no application where the claim to title of agricultural land is by operation of law, such as by adverse possession. It is not an agreement, a transaction or a dealing in agricultural land.”

Kneller JA concurred but went further, in reliance on some Indian authorities, to hold that not even persistence in a suit for possession or a decree establishing the owner’s right without successful execution would disturb the occupier’s adverse possession.

Several years later, the courts in Kiritu v Kabura (1993) and Murathe v Gathimbi (1998) decisively rejected this ratio. Kwach, JA led the court in upholding the ratio of Potter JA in Githu v Ndeete that the filing of a suit for possession prevents time from running. In Murathe the court went on to say, in contrast to Wanduru, that the claim for adverse possession in the suit land could only have begun from the time when the statutory period for obtaining Land Control Board consent lapsed and the agreement became void.

Wamukota v Donati (1987) involved once again an agreement to sell that had become void for all purposes, both equitable and legal, after failure by the vendor to obtain Land Control Board consent. The vendor had subsequently sold the land to a third party, who colluded with him to defeat the occupier. Since the period of adverse possession had not fully accrued, the case had to be decided on the basis of whether equity could allow statute to be used as an engine of fraud.

Apaloo JA conceded that this view had been implicitly rejected by the Court of Appeal in Rioki Estates Ltd v Njoroge (1977). He however doubted the Land Control Act as judicially construed and applied. “I have, I hope, given full expression to the difficulty I feel about the conclusion to which we have come... I concur in the result reached with no relish, and with far less confidence than my brothers.” Here revealed was the painful judicial ascent to the pinnacle of doubt in Kenyan land law.

In Kungu v Thige (1989), the wife claimed adverse possession against her husband. The court rejected her claim on the ground that her possession had not been continuous so as to defeat the interest of a bona fide purchaser under the power of sale. It is surprising that the court did not assert the pre-eminence of the legal chargee’s right to the right of an adverse possessor in relation to registered land.

The question of when adverse possession starts against a person entitled to registration was dealt with in Lusenaka v Omocha (1994). Title to the land was in the name of “Settlement Fund Trustees” until 1987 when it was transferred to the original allottee and sold to a third party. The plaintiff had ‘purchased’ the land in 1964 and moved into possession. The main question was whether adverse possession could run against the SFT, and alternatively whether the original allottee prior to his registration had sufficient title that could be defeated by a claim for adverse possession.

Under the Agriculture Act, no suit by the SFT would be defeated only on the ground of any law of limitation. The question was therefore if any adverse possession could accrue against a person whose ownership of land was unregistered and subject to SFT rights. The court side-stepped the question and held, “[the original allottee] had sufficient title in the land against which the respondent could acquire prescriptive rights through adverse possession.”

Contrastingly in Ali v A.G. (1997) the Court of Appeal was to say, “Adverse possession can only be claimed against a properly registered owner, that is to say, possession must be adverse to that of the registered proprietor.” In that case, the court rejected the claim and observed grimly, “This appeal has caused us a lot of heartache. Whilst we fully sympathise with Mr Hamisi Ali we cannot and would not overrule the learned judge… We would only express the pious hope that the Commissioner would deem it fit to allocate him some other land elsewhere.”

Also in Kaara v Kaara (1997) the court held that the claimant had not acquired title to land by adverse possession because he was on the land with the father’s consent, and he had subsequently consented to the division of the land in a succession cause. The court observed, “the limitation… period does not start running unless the land is in the possession of some interest in it hostile to that of the owner thereof. Possession is hostile if it is open, without right, without force or fraud, and exclusive.” The bench in Mutiso v Mutiso (2001) would later uphold a preliminary objection and dismiss a suit for adverse possession on the ground that the claimant had pleaded “open and quiet occupation and use of the… land with the full knowledge and consent both of the respondent and his predecessor in title.”

In Mbogo v Ngugi (1997) it was the father who was claiming adverse possession against his son. On the question of whether earlier proceedings by the adverse possessor in respect of the land interrupted the accrual of time the court held: “Limitation is a defence by a person in possession of land adversely to the owner’s rights. It is the owner of the land who is obliged to take reasonable steps to re-enter his land. This he can do by use of peaceful means or by instituting action to exert his rights over the land.”

The 1999 case of Wabala v Okumu is authority for the proposition that adverse possession must be actual, and not merely constructive. The defendant had acquired the land through an informal sale. He lived on the land between 1974 and 1979 after which he moved out of the suit land but continued cultivating it. His house even fell down but was not restored. The court held, “We think that it would not only be wrong but also dangerous to introduce the concept of constructive possession… As the lawyers of old used to say, the occupation must be nec vi, nec clem, nec precario.”

An issue that has been animating the courts recently is the question of the procedure in a claim for adverse possession. In Ngethe v Gitau (1999) the court insisted that a claim for adverse possession must begin by originating summons. In Bayete Co. Ltd v Kosgei (1999) the court granted adverse possession to a land buying company against a holder of its shares who had subsequently sold out and abandoned the property but retained his share certificate. It is instructive that this particular suit was commenced by plaint and there was no specific plea of adverse possession. Just one month later in Ting’ang’a Ltd v Moki Savings (1999), two of the judges in Bayete held that a claim for adverse possession must always be made by Originating Summons, never by plaint, not even on account of fraud or complexity.

Yet in Wabala the claim for adverse possession originated as a defence in an action for eviction in the magistrate’s court. The Court of Appeal did not comment adversely on the procedure used to agitate the issue. Earlier still in Lusenaka, the plaintiff brought two suits for adverse possession, one by plaint and one by originating summons. The two were consolidated by consent. The court observed, “A claim for adverse possession… must be brought by way of an originating summons... We take it that by conceding to the consolidation of the two suits, the appellants must have agreed to give up their right to object to the plaint filed in Kakamega case as being incompetent and that plaint was probably swallowed up in the originating summons.”

Interestingly though, in Ngethe the court held, “the claim by way of adverse possession not having been brought by way of an originating summons… it cannot succeed. There appears to be no authority or provision for the reverse procedure, that is to say for an action begun by plaint (as this was) to be continued as an originating summons.”

The lack of relish (Apaloo, JA), the heartaches, sympathy and pious hopes (Tunoi, Shah & Bosire, JJA) of our judges will continue forming the background tapestry to cases of adverse possession in Kenya. The principles of adverse possession will be further tortured and twisted in search of the ever-elusive equity in land title and distribution. In the process, one wonders whether, like a phoenix rising from the ashes, equity will resurrect its principles and become the supreme arbiter of land disputes in Kenya.

Cases referred to:- LLR citation
1. Rioki Estates Ltd v Njoroge [1977] KLR 146
2. Public Trustee & anor v Wanduru [1982] LLR 74 (CAK)
3. Wamukota v Donati [1986] LLR (CAK)
4. Githu v Ndeete (ref in Murathe v Gathambi)
5. Kungu v Thige [1988] LLR (CAK)
6. Kiritu v Kabura (1993) C.A. 20/93 (ref in Murathe v Gathambi)
7. Lusenaka v Omocha [1993] LLR (CAK)
8. Ali v A.G. (1997) [1997] LLR 578 (CAK)
9. Kaara v Kaara (1997) [1996] LLR (CAK)
10. Mbogo v Ngugi (1997) [1997] LLR (CAK)
11. Murathe v Gathimbi (1998) [1996] LLR 433 (CAK)
12. Ngethe v Gitau (1999) [1998] LLR 770 (CAK)
13. Wabala & Anor v Okumu [1997] LLR 608 (CAK)
14. Bayete Co. Ltd v Kosgei [1998] LLR 813 (CAK)
15. Ting’ang’a Ltd v Moki Savings [1999] LLR 1092 (CAK)
16. Mutiso v Mutiso [1998] LLR 3268 (CAK)