Maweu v Liu Ranching & Farming Cooperative Society [1985] KECA 72 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that long-term occupiers can claim land through adverse possession even against registered titleholders.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether limitation for the purpose of adverse possession ran from the date the respondent acquired the land, so that possession prior to registration could not count
- 2.Whether the interpretation given to the Limitation of Actions Act (cap 22) by the High Court was correct
- 3.Whether the Land Titles Act (cap 282) applied to the suit land, or whether the Registration of Titles Act (cap 281) governed it
- 4.Whether the defence and counterclaim disclosed triable issues and should not have been struck out
Key legal issues
#Whether registered (absolute and indefeasible) title defeats a claim of adverse possession accruing before registration
No - the indefeasibility conferred by the registration statutes does not interfere with the operation of the Limitation of Actions Act; the registration Acts do not deal with possession
The court reasoned that adverse possession is by definition the antithesis of title and is essentially a matter for the Limitation of Actions Act, not the registration legislation. Following the Privy Council in Belize Estate and Produce Co v Quilter, it found no intention in the Registration of Titles Act to deal with possession. Section 30(f) of the Registered Land Act, recognising prescription as an overriding interest, illustrates that registration statutes do not extinguish adverse-possession claims. The public policy underlying limitation is that long possession should not be disturbed by negligent owners.
Whether the Land Titles Act (cap 282) applied to the suit land
It did not; it applies only to Mombasa Island and other Coast Province areas specified in proclamations, whereas the suit land was at Kiu in Machakos District and was registered under the Registration of Titles Act (cap 281)
The trial judge had applied section 21 of the Land Titles Act following Alibhai v Alibhai, holding that no period of adverse possession prior to acquisition of title could count. Hancox JA demonstrated this was a mistake: the Act applies only to areas named in proclamations under section 2, all in and near the Coast Province. The relevant provisions were sections 23 and 36 of the Registration of Titles Act. This error partly led to the appellants being deprived of their right to defend.
Whether the defence and counterclaim disclosed triable issues
Yes; the striking out and summary judgment were wrongly granted and the trial should proceed
Section 38(1) of the Limitation of Actions Act expressly permits a person claiming title by adverse possession to registered land to apply to the High Court to be registered as proprietor, and section 37 applies the Act to registered land. Had the judge considered these sections he would not have struck out the defence. Triable issues existed, notably the acreage of land offered for settlement, and summary judgment was entered without production of the certificate of title, which it was the respondent's obligation to produce.
Legal principles established
#- Questions of title to, and adverse possession of, land are separate and distinct; registration statutes confer title but the law of limitation governs adverse possession
- An action based on adverse possession is maintainable against land registered under the Registration of Titles Act by virtue of sections 37 and 38 of the Limitation of Actions Act
- The period of limitation for adverse possession is not confined to possession arising after the date of registration or transfer; possession during a predecessor's ownership counts
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree of the High Court (striking out the defence and counterclaim and entering judgment for the respondent) set aside
- 3.Record remitted to the High Court for the trial to continue
- 4.Costs of the appeal and of the proceedings consequent on the notice of motion in the High Court awarded to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the first judgment: adverse possession is the antithesis of title and is a matter for the Limitation of Actions Act, not the registration statutes; the Registration of Titles Act does not deal with possession, so absolute and indefeasible title does not shield a proprietor from limitation running during a predecessor's ownership. Appeal allowed, judgment and decree set aside, record remitted for trial.
Consequently, in my view, the appeal must be allowed, the judgment and decree of the High Court should be set aside, and the record remitted to the High Court for the trial to continue.p. 3
Wrote the judgment
Agreed with Platt Ag JA. Held that the judge erred in applying the Land Titles Act, which does not apply to land at Kiu in Machakos District; the applicable provisions were sections 23 and 36 of the Registration of Titles Act and sections 37 and 38 of the Limitation of Actions Act, under which an adverse-possession claim is maintainable against registered land. There were triable issues and summary judgment was improperly entered without production of the certificate of title.
Clearly there existed triable issues in this case not the least of which was as to the acreage of the land offered for settlement as the affidavits and exhibited correspondence filed in the High Court in support of and against the motion showedp. 6
Wrote the judgment
Agreed with both judgments and added that the Land Control Board consent carried a special condition requiring the respondent to lease 550 acres to 18 families, and that the divergence of views in the affidavits and correspondence about the acreage raised a triable issue entitling the appellants to be heard.
That was an issue so basic to the litigation that it raised a triable issue and the appellants should have been allowed to put their case to the High Court.p. 6
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over an appeal from the High Court (the appeal being against an interlocutory order striking out a defence and counterclaim and entering summary judgment)
Relief refused
#The appellants' counterclaim for an order that the respondent society transfer the land to them was not granted at this stage
The matter was remitted for trial; Hancox JA noted the proper procedural route for a section 38 application but allowed the counterclaim to proceed in the present suit
Costs
Costs of the appeal and of the proceedings consequent on the notice of motion in the High Court awarded to the appellants in any event
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.
Accordingly, in my view, the appeal must be allowed, the judgment and decree of the High Court should be set aside, and the record remitted to the High Court for the trial to continue.
I would therefore allow the appeal set aside the order of the High Court and direct that the trial should proceed.
that the questions of title to, and adverse possession of, Land are separate and distinct.
No title which passed to a new owner before registration was provided for, curtailed the period of limitation.
Clearly there existed triable issues in this case not the least of which was as to the acreage of the land offered for settlement
It was the Respondent's obligation to do so and the Judge should not have given summary judgement without calling for it.
Issues in the judgment
#The judgment variously renders the case name as 'Gathure v Berverly' and 'Gathure v Beverly', with citations given as [1965] EA 515 and 1965/EA 514
The Registration of Titles Act is cited inconsistently as cap 281 and as 'cap 28'
The case title and full party names are not stated in the judgment text; the parties are identified only descriptively as the twenty settler appellants and the respondent Co-operative Society
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Thuita v Ngatia (Environment and Land Appeal 20 of 2023) [2025] KEELC 6911 (KLR)[2025] KEELC 6911 (KLR)8 Oct 2025followed
- Muchiri (Suing as the Administrator of the Estate of Nelson Muchiri Githinji) v Komu (Enviromental and Land Originating Summons 321 of 2019) [2025] KEELC 6027 (KLR)[2025] KEELC 6027 (KLR)17 Sept 2025applied
Cite this brief
#Cite this brief
Caselaw, "Maweu v Liu Ranching & Farming Cooperative Society [1985] KECA 72 (KLR)", Case Analysis (1985). Civil Appeal (High Court Civil Suit; appellants were twenty settlers appealing against striking out of their defence and counterclaim). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/72/eng@1985-09-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.