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Court of AppealDismissedCivil Appeal No. 84 of 2015

Alfeen Mehdimohammed v Basil Feroz Mohamed & 223 Others [2016] KECA 480 (KLR)

Court of Appeal of Kenya
17 June 2016
3,108 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that 40 years of open occupation gave Owino Uhuru residents ownership rights that defeated the new registered owner's title.

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 Mombasa (Asike-Makhandia, Ouko and M'inoti, JJ.A.) against the judgment of Omollo, J. delivered on 30 October 2015 in HCC No. 37 of 2012, in which the High Court dismissed the appellant's claim for eviction of 224 respondents from parcel No.148/V/MN (Owino Uhuru), Changamwe, Mombasa, and upheld their counter-claim for registration as proprietors by adverse possession. The court framed a single question: whether the respondents were entitled to be registered as proprietors of the suit land by prescription. It restated twelve settled principles of adverse possession, drawn from the authorities relied on by both sides, and applied them as a first appellate court, re-evaluating the evidence while allowing for the trial court's advantage of seeing the witnesses. It found as a fact that the respondents had occupied the land since about 1975/1976, initially with the permission of the then owner but later without payment and non-consensually; that they had erected semi-permanent structures, three schools, eight churches, a mosque and a cemetery serving over 10,000 people; and that the original and subsequent owners had been dispossessed or had discontinued possession. The appellant's title, acquired in 2012 by inheritance, took subject to the overriding interest of adverse possession preserved by section 28(h) of the Land Registration Act, 2012; the transfer of the land to him did not interrupt time. The court held adverse possession proved with animus possidendi and nec vi, nec clam, nec precario, affirmed the decision of the High Court, and dismissed the appeal with costs. The court also held that a claim for adverse possession may be pleaded in a defence or counter-claim and that the doctrine is constitutional.

Questions the Court framed

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

  1. 1.Whether the respondents are entitled to be registered as proprietors of the suit land, parcel No.148/V/MN (Owino Uhuru), by prescription (adverse possession)
  2. 2.Whether adverse possession was proved against the appellant as current registered proprietor
  3. 3.Whether the respondents' rights constituted overriding interests under section 28(h) of the Land Registration Act, 2012
  4. 4.Whether the appellant's constitutional rights under Articles 25, 40 and the rules of natural justice were violated by reliance on proceedings in HCCC No.51 of 2010 (OS) to which he was not a party

Key legal issues

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01

Whether adverse possession was proved against the appellant

Holding

Yes. The respondents had occupied the land openly, continuously and non-consensually for over 40 years; the appellant's title, acquired in 2012, took subject to that overriding interest.

Reasoning

The court, as a first appellate court, re-evaluated the evidence and found as a fact that the respondents were already on the land when the appellant inherited it in 2012, having occupied it since about 1975/1976. The original and subsequent owners were dispossessed and their possession discontinued. The occupation had animus possidendi and was nec vi, nec clam, nec precario. Time was not interrupted by the successive transfers of the land, and the appellant, who never inspected the land, risked his title.

p. 5
02

Sanctity of the appellant's title under the Land Registration Act

Holding

The appellant's registered title was prima facie and indefeasible but subject to the overriding interest of prescriptive rights under section 28(h) of the Land Registration Act, 2012.

Reasoning

While section 26 of the Land Registration Act confers prima facie absolute and indefeasible ownership, section 28(h) expressly preserves as overriding interests rights acquired or in process of being acquired by prescription. The respondents' long occupation therefore encumbered the title notwithstanding its registration, and the appellant's reliance on indefeasibility failed.

p. 4
03

Whether reliance on the interlocutory judgment in HCCC No.51 of 2010 (OS) violated the appellant's constitutional rights and natural justice

Holding

The appeal was decided on the evidence and the doctrine of adverse possession as proved at trial; the claim for adverse possession properly lay in the counter-claim, and no violation was found.

Reasoning

The court applied settled principles, including that a claim for adverse possession may now be pleaded in a defence or counter-claim rather than only by originating summons. The court found no substance in the appeal on the facts and the law, and the constitutional objection did not disturb the conclusion that the respondents' possession was adverse and had matured.

p. 4

Legal principles established

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  • Adverse possession is an overriding interest under section 28(h) of the Land Registration Act, 2012, and a new registered proprietor takes subject to it; a change of ownership does not interrupt time running in the adverse possessor's favour.
  • The enumerated principles of adverse possession (registered-proprietor requirement, dispossession or discontinuance, non-consensual occupation nec vi nec clam nec precario, animus possidendi, non-interruption on transfer) bind lower courts as the settled statement of the doctrine.
  • A claim for adverse possession need not be brought by originating summons; it may be raised in a defence or counter-claim.
  • Under section 26 of the Land Registration Act, 2012 a certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to overriding interests, unlike the absolute title under the repealed Registration of Titles Act.

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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

majority
William Ouko
OukoJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Mombasa (Environment and Land Court)
HCC No. 37 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 104(a) of the Court of Appeal Rules referenced)

Relief refused

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Appellant's prayer for eviction/vacant possession and setting aside the judgment of the High Court

The appellant's title was subject to an overriding interest in the form of adverse possession which had matured against prior owners

p. 5

Respondents' ground (argued without being in the memorandum of appeal) that claims of respondents who did not testify were not proved

No ground not specified in the memorandum of appeal may be argued without leave

p. 3

Costs

Appeal dismissed with costs to the respondents.

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.

For these reasons we find no substance in this appeal. It is dismissed with costs.
p. 5Disposition - appeal dismissed
The occupation and use of the suit land by the respondents had animus possidendi and was nec vi, nec clam, nec precario.
p. 5Ingredients of adverse possession established
His title, when acquired was subject to the existence of an overriding interest in the form of adverse possession by the respondents.
p. 5Registered title subject to overriding interest
The mere change of ownership of the land which is occupied by another under adverse possession does not interrupt time from running in that other person’s favour
p. 4Transfer of land does not interrupt limitation period
Adverse possession is a fact to be observed upon the land. It is not to be seen in a title and any person who buys land without knowing who is in possession of it risks his title
p. 4Buyer beware - duty to inspect possession
The doctrine of adverse possession is not unconstitutional
p. 4Constitutionality of adverse possession

Issues in the judgment

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minor

The judgment inconsistently renders the names of the two 2009 transferee companies and one of the former owners, and is internally inconsistent about when the appellant's uncle acquired the land versus the registration date in his favour.

minor

The judgment refers to section 26 (1) of the Land Registration Act (cap.300) in the appellant's submissions although the Land Registration Act is elsewhere cited as No.3 of 2012, the repealed statute bearing cap.300 being the Indian Registration of Titles framework.

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, "Alfeen Mehdimohammed v Basil Feroz Mohamed & 223 Others [2016] KECA 480 (KLR)", Case Analysis (2016). Civil Appeal No. 84 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/480/eng@2016-06-17

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