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Court of AppealPartially AllowedCivil Appeal 49 of 1996

William Gatuhi Murathe v Gakuru Gathimbi [1998] KECA 26 (KLR)

Court of Appeal
6 March 1998
2,818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that filing a counterclaim to recover land stops the adverse possession clock, so the owner regained his property.

What this practically means

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Executive summary

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The Court of Appeal allowed the appellant registered proprietor's appeal against the High Court's dismissal of his counterclaim for possession of suit land. The respondent had purchased agricultural land from one Ayub Nguyai "B" in 1972, but the sale became void three months later for want of Land Control Board consent. After the vendor's death, his sons sold the land to the appellant, who was registered as proprietor despite the respondent's caution. The respondent sued in 1974, and the appellant counterclaimed in 1979 for possession and mesne profits. The High Court (Shields J) dismissed the counterclaim, holding that the respondent had been in possession for over twelve years, relying on section 30(f) of the Registered Land Act and counsel's submissions in Pugh v Heath. The Court of Appeal held that the respondent's possession only became adverse when the sale agreement became void in December 1972, before which he was at most a licensee. Critically, the Court held that the appellant's counterclaim, being an action to recover land under section 7 of the Limitation of Actions Act and having the same effect as a cross suit, stopped time from running in the respondent's favour. Following the Court's unanimous decision in Kiritu v Kabura, which adopted Potter JA's reasoning in Githu v Ndeete, filing suit for recovery of land interrupts adverse possession. The respondent therefore had not accrued twelve years' uninterrupted adverse possession. The judgment and decree below were set aside, vacant possession was awarded to the appellant, with costs of the appeal and the court below.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's adverse possession of the suit land could be terminated by the institution of an action by the appellant by way of a counterclaim seeking recovery of possession
  2. 2.Whether the respondent had been in uninterrupted adverse possession of the suit land for twelve continuous years so as to defeat the appellant's counterclaim
  3. 3.Whether the appellant's counterclaim was an action to recover land within the meaning of section 7 of the Limitation of Actions Act, such that time ceased to run in favour of the respondent upon its institution

Key legal issues

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01

Whether a counterclaim for recovery of land interrupts adverse possession

Holding

Yes - the institution of a counterclaim, having the same effect as a cross suit, stops time running in favour of the adverse possessor

Reasoning

Relying on the Court's unanimous decision in Kiritu v Kabura, which adopted Potter JA's position in Githu v Ndeete and the passage from Cheshire's Modern Law of Real Property, the Court held that an owner asserts his right by taking legal proceedings, and that filing suit for recovery of land stops time under section 38 of the Limitation of Actions Act. A counterclaim is such an action.

p. 3
02

When the respondent's adverse possession began and whether twelve years had accrued

Holding

Adverse possession could at the earliest have begun in December 1972 when the sale agreement became void for want of Land Control Board consent; by the appellant's counterclaim in 1979 less than eight (or at most seven) years had run

Reasoning

Before the agreement became void, the respondent's occupation, if any, was with the consent of the vendor, so it was not adverse. Even computing from 1972, twelve years would only have matured in 1985, well after the 1979 counterclaim interrupted the running of time. The learned judge erred in finding twelve years' possession without determining when possession began.

p. 4
03

Whether the learned judge erred in relying on Pugh v Heath

Holding

The judge misapplied Pugh v Heath, preferring counsel's submissions over the judgment itself, and failed to consider the effect of the counterclaim as an interruption of adverse possession

Reasoning

Pugh v Heath concerned a mortgagee's right to recover possession after foreclosure, not adverse possession as against a registered proprietor. The judge relied on counsel's submissions in that case rather than its actual holding, and did not consider whether the counterclaim constituted an interruption of the respondent's possession period.

p. 3

Legal principles established

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  • The filing of a suit for recovery of land, including by way of counterclaim, stops time from running for the purposes of adverse possession under the Limitation of Actions Act
  • A counterclaim has the same effect as a cross suit and interrupts the adverse possessor's period of possession
  • Where a sale of agricultural land becomes void for want of Land Control Board consent, the purchaser's possession only becomes adverse when the agreement fails to materialise and he continues in occupation

Court orders

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  1. 1.The judgment of the learned judge and its related decree are set aside
  2. 2.The appellant, as the registered proprietor of the suit land, shall have vacant possession of the suit land
  3. 3.The costs of this appeal and of the court below are awarded to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 920 of 1979
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (statutory appellate jurisdiction)

Relief refused

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Respondent's claim to title by adverse possession

The respondent had not achieved twelve years of uninterrupted adverse possession before the appellant's counterclaim interrupted the running of time

p. 4

Costs

The cost of this appeal and of the court below shall be to the appellant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appellant's appeal succeeds, the judgement of the learned judge and its related decree are hereby se aside and it is hereby ordered that the appellant as the registered proprietor of the suit land, shall have vacant possession of the suit land. The cost of this appeal and of the court below shall be to the appellant.
p. 5Final orders - appeal allowed, judgment below set aside, vacant possession and costs to appellant
it was held that the filing of a suit for recovery of land would stop time from running for the purpose of section 38 of the Limitation of Action Act under which a person may claim to have become entitled to land by adverse possession
p. 4Filing suit for recovery of land stops time running under section 38
upon bringing his counterclaim, which has the same effect as a cross suit brought under Order VIII r 2 of the Civil Procedure Rules, the time of the respondent's adverse possession ceased to run against him
p. 4Counterclaim interrupts adverse possession
he was no more than the a licensee whose possession only became adverse when the sale agreement between him and Ayub Nguyai "B" did not materialise and he continued in occupation
p. 3Commencement of adverse possession where sale is void for want of Land Control Board consent

Issues in the judgment

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minor

The judgment contains typographical errors in the quoted text, e.g. 'se aside' for 'set aside' and 'the a licensee'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "William Gatuhi Murathe v Gakuru Gathimbi [1998] KECA 26 (KLR)", Case Analysis (1998). Civil Appeal 49 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/26/eng@1998-03-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.