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Court of AppealPartially AllowedCourt of Appeal Appeal from Kakamega (case number not stated in judgment)

Kihamba v Mbaisi (Civil Appeal 27 of 2013) [2015] KECA 853 (KLR)

Court of Appeal of Kenya
5 February 2015
David Kenani MaragaD. MaragaFAF. AzangalalaSKS. ole Kantai
4,904 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a family member living on land with the owner's permission cannot claim ownership through adverse possession.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu against the decision of Chitembwe J of the High Court at Kakamega, delivered on 29th May 2013, which had upheld the respondent Mary Mbaisi's claim to plot Kakamega/Lugari/67 by adverse possession and ordered cancellation of the title of her step-son, the appellant Samuel Kihamba, registered as proprietor in 1997 after paying off a Settlement Fund Trustees loan. The Court distilled three issues: whether the respondent occupied under a licence such that adverse possession could not run; whether the doctrine could apply between close relatives; and whether the judge could find fraud when fraud had neither been pleaded nor proved. Reviewing the evidence afresh and surveying the authorities on adverse possession - Wambugu v Njuguna, Kasuve v Mwaani, Kibunja, Ojiambo, and Mwamboje - the Court held that occupation of land by consent or licence accrues no right of adverse possession; that among relatives there is a rebuttable presumption of consent, with the burden on the claimant to prove its withdrawal and 12 years of adverse occupation thereafter; and that applying adverse possession within families would create havoc for Kenyan society. It further held that the trial judge erred in finding fraud where none was pleaded, such allegations requiring strict proof. Allowing the appeal, the Court reversed the judgment below and, given the familial relationship, ordered each party to bear their own costs of the appeal and the High Court.

Questions the Court framed

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

  1. 1.Whether the appellant had granted a licence to the respondent to reside and occupy the land and, as such licensee, whether the principle of adverse possession could apply
  2. 2.Whether the doctrine of adverse possession can apply between close relatives, in this case a step-mother and step-son
  3. 3.Whether the learned judge could make findings based on fraud when fraud had not been pleaded or proved

Key legal issues

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01

Whether adverse possession can apply as between close relatives where occupation began permissively

Holding

No. Occupation by a relative with the owner's consent amounts to a licence; adverse possession does not run against a close relative until the licence is withdrawn, and the claimant bears the burden of proving withdrawal and 12 years' adverse occupation thereafter.

Reasoning

The Court reviewed Wambugu v Njuguna, Kasuve v Mwaani, Kibunja, Ojiambo and Mwamboje, concluding that consent within families may be presumed and must be rebutted by the claimant. Applying the doctrine within families would 'create havoc' for Kenyan society. The appellant's testimony that he respected his step-mother and allowed her to remain gave her a licence whose termination was not proved.

p. 9
02

Whether a trial judge may find fraud where fraud is not pleaded

Holding

The learned judge erred by finding fraud when the respondent had not pleaded fraud at all.

Reasoning

Fraud allegations take on a criminal character and must be strictly pleaded and proved to a standard higher than a balance of probabilities, per Gudka v Dodhia. The respondent's counsel conceded fraud was not pleaded. The judge's finding that the appellant obtained his title fraudulently, resting on Article 159 to bypass pleading requirements, was therefore erroneous.

p. 9
03

Standard of proof and evidential approach in adverse possession claims

Holding

Whether a claimant is in adverse possession is a matter of evidence on a balance of probabilities, assessed by asking whether the title holder was dispossessed or discontinued possession for the statutory period.

Reasoning

Following Wambugu v Njuguna and Kasuve v Mwaani Investments, the proper test is dispossession or discontinuance by the owner for 12 years, not merely the claimant's length of possession. Possession must be continuous, open, nec vi, nec clam, nec precario, with animus possidendi, and may be actual or constructive.

p. 3

Legal principles established

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  • Adverse possession requires occupation without force, secrecy, or licence, with animus possidendi, and an apparent dispossession of the owner
  • Where a relative lives on a claimant's land, there is a rebuttable presumption of consent, and the burden of proving that consent or permission was not given lies on the claimant
  • Possession under consent or licence does not found adverse possession; time runs only from determination of the licence, which the claimant must prove
  • A court cannot make a finding of fraud where fraud has not been pleaded; allegations of fraud must be strictly proved, more than on a balance of probabilities
  • An appellate court will not interfere with the exercise of a judge's discretion unless the judge misdirected himself or was clearly wrong resulting in misjustice

Court orders

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  1. 1.Appeal allowed
  2. 2.Each party to bear his/her own costs of this appeal and those at the High Court

The bench

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

David Kenani Maraga
majority
FA
majority
SK
majority
On appeal from
High Court of Kenya, Kakamega
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Court of Appeal's appellate jurisdiction (provision not expressly cited in the judgment)

Relief refused

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Respondent's claim for cancellation of title and registration as owner by adverse possession

The respondent occupied the land under a licence from her step-son; adverse possession cannot apply between close relatives, and the licence's termination was not proved

p. 8

Costs

Each party bears his/her own costs of this appeal and those at the High Court

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.

it would create havoc for families and the society of Kenya generally if the principle of adverse possession applied within families against close relatives
p. 8Adverse possession between family members
Occupation of land by consent or license does not accrue any right of adverse possession on the claimant
p. 4Licence defeats adverse possession
Allegations of fraud are serious taking on a criminal character and the party making them must prove them strictly, not on a mere balance of probabilities
p. 9Pleading and proof of fraud
Given the relationship between the appellant and the respondent, we order that each party bears his /her own costs of this appeal and those at the High Court.
p. 9Disposition and costs

Issues in the judgment

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minor

The judgment's grounds summary says the memorandum of appeal collapses into three issues but then states only two ('whether the appellant had granted a license... and secondly, whether...') before adding a third, creating an internal count inconsistency

minor

The judgment inconsistently states the date of the appellant's registration: it opens by stating registration on 19th February 1997, but counsel's submissions and the trial record place registration in 1974

minor

The case name for the persuasive High Court decision is rendered inconsistently ('Rodgers Mwamboje' at first mention, 'Mwambonje' later)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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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, "Kihamba v Mbaisi (Civil Appeal 27 of 2013) [2015] KECA 853 (KLR)", Case Analysis (2015). Court of Appeal Appeal from Kakamega (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/853/eng@2015-02-05

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