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ELCPartially AllowedNot stated in judgment (filed 25 May 2015)

Backstone Otieno Angana v Benard Amasaka [2018] KEELC 4227 (KLR)

Environment and Land Court
7 March 2018
SMS. Mukunya
923 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a caretaker's land occupation was with permission, so his adverse possession claim failed and he was evicted.

What this practically means

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Executive summary

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The plaintiff sued for eviction from land parcel E. Bukusu/S. Kanduyi/5291, alleging he and one Silas Muyela Nganyi purchased it in 2011 from the registered owner, Zakayo Okoba Kweya, for Kshs.700,000/= (Kshs.350,000/= each), obtained Kanduyi Land Control Board consent, and were registered, only to find the defendant in occupation with a one-roomed mud house when he went to plough in 2012. The defendant denied the claim and counterclaimed for the whole parcel on the basis of adverse possession, claiming occupation since 1992. PW2, the seller, testified that the defendant was his employee earning Kshs.1,500/= per month to care for the land and had no claim over it. The defendant admitted entering as caretaker/employee in 1992 and being told to leave after the sale. The court held that the defendant's occupation was permissive and that time for adverse possession could only begin when that permission ended upon notice to leave in 2011; the suit filed in April 2013 came barely three years later, so no adverse possession claim could be sustained. The plaintiff's claim was allowed as prayed, the defendant ordered to vacate forthwith, and the counterclaim dismissed with costs. Judgment was delivered at Bungoma on 7 March 2018 by S. Mukunya, Judge.

Questions the Court framed

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

  1. 1.Whether the plaintiff ought to be granted his prayer of eviction
  2. 2.Whether the defendant has acquired the land by adverse possession

Key legal issues

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01

Whether the defendant had acquired title by adverse possession

Holding

No; his occupation was permissive as caretaker/employee of the registered owner and only ceased on notice in 2011, barely three years before suit

Reasoning

The defendant admitted entering the land in 1992 as caretaker/employee of the then registered owner, Zakayo Okoba Kweya. Permissive occupation does not ripen into adverse possession. Permission ended when the land was sold in 2011 and the defendant was given notice to leave. The suit, filed in April 2013, came only about three years later, far short of the twelve years required, so the counterclaim failed.

p. 2
02

Whether the plaintiff was entitled to eviction

Holding

Yes; the plaintiff proved purchase, Land Control Board consent and registration, leaving the defendant with no right to remain

Reasoning

The plaintiff and Silas Muyela Nganyi purchased the parcel for Kshs.700,000/= from the registered owner, obtained Kanduyi Land Control Board consent, and were registered. The seller (PW2) confirmed the sale and disowned any claim by the defendant, who had been told to leave. The defendant admitted being asked to vacate but refused, so he had no right to remain and eviction was justified.

p. 2

Legal principles established

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  • Time for adverse possession against a registered owner begins to run only when permissive occupation is terminated

Court orders

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  1. 1.The plaintiff's claim is allowed as prayed, including eviction of the defendant from E. Bukusu/S. Kanduyi/5291
  2. 2.The defendant shall vacate the suit land forthwith
  3. 3.The defendant's counterclaim for adverse possession is dismissed with costs

The bench

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

SM
majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction over land claim and counterclaim for adverse possession

Relief refused

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Defendant's counterclaim to be registered as owner of the whole parcel by adverse possession

Permissive occupation as caretaker ended only when notice to leave was given on sale in 2011; suit filed barely three years later

p. 2

Costs

Counterclaim dismissed with costs to the plaintiff

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.

This is when the defendants permissive occupation ended. Time for adverse possession against the registered owner of the suit land could only start then.
p. 2Commencement of time for adverse possession against permissive occupier
No adverse possession claim can therefore be sustained against the past or present registered owner of East Bukusu/South Kanduyi 5291.
p. 2Failure of adverse possession counterclaim
The defendant has absolutely no right to be on the suit land. He shall move and vacate out of the said land forthwith. The plaintiff claim in the suit is allowed as prayed. The counterclaim is dismissed with costs.
p. 2Final orders - eviction and dismissal of counterclaim

Issues in the judgment

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minor

Defendant's name is not given anywhere in the judgment despite being a party

material

The date of filing of the suit is stated inconsistently: plaint filed 25 May 2015, but the judgment later says the suit was filed on 16th April, 2013

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, "Backstone Otieno Angana v Benard Amasaka [2018] KEELC 4227 (KLR)", Case Analysis (2018). Not stated in judgment (filed 25 May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4227/eng@2018-03-07

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