Wanje & Others v AK Saikwa & Others (Civil Appeal 72 of 1982) [1984] KECA 71 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that land occupied with an owner's permission can only become adverse possession after that permission is properly ended and twelve years pass.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants had acquired title to the land by adverse possession under sections 7, 13 and 17 of the Limitation of Actions Act (cap 22)
- 2.What interest, known in law, the defendants had in the land - licences, tenants, invitees, right of way, or trespassers
- 3.Whether a claim of adverse possession not pleaded in the High Court could be raised on appeal
- 4.Whether the meeting and notices of 1974 operated to defeat the provisions of sections 7 and 17 of the Limitation of Actions Act
Key legal issues
#Whether the appellants' occupation was adverse to the registered owners
It was not: the appellants occupied with the consent of successive owners, first under licences and later as tenants at will, so their possession was permissive and not adverse.
The licences granted in 1961 lapsed when Hussein Dairy Ltd bought the land in 1962, after which the appellants remained as tenants at will. Occupation with consent is not illegal and does not dispossess the owner. The tenancy at will was determined only when the respondents demanded possession in 1974/January 1975, from which date time for adverse possession began to run. By the filing of the suit in January 1981 only about six years had elapsed, short of the twelve years required.
Whether a party may raise adverse possession on appeal although it was not pleaded at trial
The court held that even if adverse possession had been pleaded it would have failed, so the pleading point was not decisive but was noted.
The agreed issues in the High Court did not include adverse possession; it surfaced only in closing submissions. The court accepted the trial judge's finding that adverse possession was neither pleaded nor proved, and further found that on the evidence the twelve-year period had not matured when the suit was filed, so the claim would have failed in any event.
Whether the appellants were trespassers
During the period of permissive occupation they were not trespassers, but their right to remain has since been effectively determined and they now have no right known in law to be on the land.
Tenants at will are permissive occupiers and cannot simultaneously be trespassers, following Sisto Wambugu v Kamau Njuguna. However, once the tenancy at will was determined by demand for possession and the statutory period had not accrued in their favour, their entitlement came to an end.
Legal principles established
#- A person who occupies land with the owner's consent, whether as licensee or tenant at will, cannot claim adverse possession until that permissive occupation has been effectively determined; time only runs from the determination.
- For occupation to be adverse it must be inconsistent with the true owner's enjoyment of the soil for the purpose for which he intended to use it.
- A tenancy at will may be determined by a demand by the landlord for possession without a formal notice; under section 12(1) of the Limitation of Actions Act a tenancy at will is otherwise deemed determined one year after commencement.
Court orders
#- 1.Appeals of fourteen deceased appellants struck out with no order as to costs
- 2.Appeal by the surviving eighty appellants dismissed
- 3.Judgment of Schofield J (declaration, eviction and damages of Kshs 7,000) left standing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the lead judgment: the appellants were licensees whose licences lapsed in 1962, thereafter tenants at will; occupation was permissive and not adverse; even if adverse possession had been pleaded it could not succeed as only about six years ran from determination of the tenancy in January 1975 to filing of the suit. Appeal dismissed.
Accordingly I would dismiss the appeal by the surviving eighty appellants.p. 4
Wrote the judgment
Agreed with Chesoni Ag JA, adding that during Hussein Dairy's ownership the appellants were tenants at will whose occupation was permissive; they could not be trespassers and their possession only became adverse after the notice to quit expired on January 17, 1975, giving barely six years. The adverse possession claim having failed, the appeal must be dismissed.
As adverse possession was, even though it is contained in three separate grounds in the Memorandum of Appeal, the basis of the appeal, and was also the subject of an earlier application for a re-appraisal of the evidence, it follows that, that claim having failed, the appeal also fails and must be dismissed.p. 5
Wrote the judgment
Agreed that the appellants were tenants at will, not trespassers; Hussein Dairy did not face any inability to gain possession; the tenancy was determined by the respondents' demand in September 1974 and insufficient time had run by January 17, 1981. Appeal to be dismissed.
On the evidence the tenancy at will was determined in September 1974 when the respondents demanded possession. Insufficient time had run by January 17, 1981 on which date the suit was filed.p. 6
- On appeal from
- High Court of Kenya at Mombasa
- HCCC No 45 of 1981
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court
Relief refused
#Leave to adduce additional fresh evidence in support of adverse possession
The affidavit merely repeated what the appellants' witnesses had already said at trial; there was almost no new or fresh evidence
Declaration of title by adverse possession
Possession was permissive (tenancy at will) and only about six years had run since determination of the tenancy when the suit was filed
Costs
No costs order expressly stated for the main appeal; appeals of the fourteen deceased appellants struck out with no order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A person who occupies another person’s land with that other person’s consent cannot be said to be in adverse possession as in reality he has not dispossessed the owner of his land and the possession is not illegal.
Again, there is no adverse possession when land is occupied under a licence until the licence has been determined.
to defeat a title by dispossessing the former owner ‘acts must be done which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.
Accordingly I would dismiss the appeal by the surviving eighty appellants.
it follows that, that claim having failed, the appeal also fails and must be dismissed.
The appellants, for whom I feel considerable sympathy, might have succeeded on adverse possession if they had kept quiet and remained on the land as squatters from 1962 to December 1974, but this was not the case.
Issues in the judgment
#The judgment gives inconsistent citations for Pearlberg v May ([1951] Ch 699 in Chesoni Ag JA's judgment and [1951] Ch 899 in Nyarangi Ag JA's judgment) and inconsistent spellings of Hussein/Husseini Dairy Ltd.
Dates for the notice to quit differ between the judgments: Chesoni Ag JA refers to a demand on January 17, 1975, while Hancox JA refers to one month's notice given on December 19, 1974, and Nyarangi Ag JA says the tenancy was determined in September 1974.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mumira v Githae (Enviromental and Land Originating Summons 21(B) of 2022) [2026] KEELC 1803 (KLR)[2026] KEELC 1803 (KLR)24 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Wanje & Others v AK Saikwa & Others (Civil Appeal 72 of 1982) [1984] KECA 71 (KLR)", Case Analysis (1984). Civil Appeal, High Court Civil Case No 45 of 1981 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/71/eng@1984-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.