Alfeen Mehdimohammed v Basil Feroz Mohamed & 223 Others [2016] KECA 480 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether adverse possession was proved against the appellant as current registered proprietor
- 3.Whether the respondents' rights constituted overriding interests under section 28(h) of the Land Registration Act, 2012
- 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
#Whether adverse possession was proved against the appellant
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.
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.
Sanctity of the appellant's title under the Land Registration Act
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.
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.
Whether reliance on the interlocutory judgment in HCCC No.51 of 2010 (OS) violated the appellant's constitutional rights and natural justice
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.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
Costs
Appeal dismissed with costs to the respondents.
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.
For these reasons we find no substance in this appeal. It is dismissed with costs.
The occupation and use of the suit land by the respondents had animus possidendi and was nec vi, nec clam, nec precario.
His title, when acquired was subject to the existence of an overriding interest in the form of adverse possession by the respondents.
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
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
The doctrine of adverse possession is not unconstitutional
Issues in the judgment
#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.
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
#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.
- Mwachilangu v Quadco Two Hundred and Forty Four Limited (Enviromental and Land Originating Summons E002 of 2023) [2025] KEELC 615 (KLR)[2025] KEELC 615 (KLR)19 Feb 2025applied
Cite this brief
#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.