Zakayo Richard Chesoni, Alan Robin Winston Hancox, Alister Arthur Kneller
Sisto Wambugu v Kamau Njuguna
Court of Appeal, at Nairobi
November 14, 1983
Kneller, Hancox JJA & Chesoni Ag JA
Civil Appeal No 10 of 1982
Adverse possession - claim for adverse possession - meaning of adverse possession - proof of - elements of - when occupation becomes adverse - whether occupation under licence can be adverse - when time begins to run - whether time can run in favour of a licensee - element of dispossession - meaning of - merits of adverse possession when initial occupation was under an agreement - whether permissive occupation and adverse occupation can coexist.
Land - contract for sale of land - vendor’s right to rescind the sale - when time is of essence - application for specific performance of contract - principles applicable - effect of failure to perform contract - repudiation of the contract.
Specific performance - application for order of - circumstances under which granted - failure of claimant to perform his obligations under an agreement - whether such claimant is entitled to specific performance.
The appellant filed suit seeking the removal of a caution lodged on the suit land by the respondent, an order for eviction of the respondent and a perpetual injunction restraining him from trespassing on the land.The appellant, who was the registered owner of the suit land, claimed to have allowed the respondent to occupy it under a lease agreement. The respondent, however, claimed that he purchased the land from the appellant for Kshs 2,485 and had paid Kshs 2,300 and that he had received a notice of eviction after continuous and uninterrupted possession for nineteen years. He further claimed that he had refused to honour the notice and the appellant had gone to court. The respondent counterclaimed for transfer and registration of the suit land in his name by virtue of the sale agreement and also by virtue of adverse possession. The High Court gave judgment for the respondent and the appellant appealed.
1. The general principle is that until the contrary is proved, possession in law follows the right to possess.
2. In order to acquire by the statute of limitations title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it. The respondent could and did not prove that the appellant had either been dispossessed or had discontinued possession of the suit land for a continuous statutory period of twelve years as to entitle him, the respondent, to title to that land by adverse possession.
3. The Limitation of Actions Act, on adverse possession, contemplates two concepts: dispossession and discontinuance of possession. The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession for the requisite number of years.
4. Where the claimant is in exclusive possession of the land with leave and licence of the appellant in pursuance to a valid sale agreement, the possession becomes adverse and time begins to run at the time the licence is determined. Prior to the determination of the licence the occupation is not adverse but with permission. The occupation can only be either with permission or adverse; the two concepts cannot co-exist. The respondent occupied the suit land originally under an agreement for sale of land being a licence from the appellant, although the respondent’s possession was exclusive and continuous but was not adverse; it only became adverse after the licence was determined.
5. The rule on ‘permissive possession’ is that possession does not become adverse before the end of the period during which the possessor is permitted to occupy the land. For the respondent’s claim for adverse possession to succeed, he must have an effective right to make entry and recover possession of land. He could not have that effective right because the occupation was under a contract, or licence, which had not been determined.
6. Adverse possession means that a person is in possession, in whose favour time can run. Not all persons in possession can have time run in their favour. For example, time can run in favour of a tenant at will by virtue of section 12 of the Limitation of Actions Act but time cannot run in favour of a licensee. A licensee therefore has no adverse possession (Hughes v Griffin  1 WLR 23).
7. Where the claimant is a purchaser under a contract of sale of land, it would be unfair to allow time to run in favour of a purchaser pending completion when it is clear that he was only allowed to continue to stay because of the pending purchase because had it not been for the pending purchase the vendors would have evicted him. The possession can therefore only become adverse once the contract is repudiated. In this instance, time began to run once the appellant sent a letter to the respondent terminating the agreement.
8. Where a claimant pleads the right to land under an agreement and in the alternative seeks an order based on subsequent adverse possession, the rule is: the claimant’s possession is deemed to have become adverse to that of the owner after the payment of the last instalment of the purchase price. The claimant will succeed under adverse possession upon occupation for at least twelve years after such payment.
9. An order for specific performance cannot be granted to a purchaser who has not performed his part of the bargain or has failed to show that he was at all times ready and willing to do so. The respondent in this instance made no attempt to perform his obligation to pay the balance of the purchase price for seven years, he therefore cannot at this late stage obtain an order for specific and performance transfer of land.
10. Where an agreement does not state that time is of essence (as was the case here) and neither does the vendor give notice for making time of essence, such a vendor having failed to take the necessary steps to make time of the essence could not repudiate the contract on the ground of unreasonable delay by the purchaser to perform. In such a case the making of time of the essence has been waived and time can only be made of the essence by fixing of a reasonable time for performance.
11. The vendor is entitled to repudiate the contract of sale of the suit land, for failure of performance. The purchaser had failed to pay the balance of the purchase price and could not demand performance by the appellant. In this case there was originally a contract of sale of the suit land and the contract was lawfully repudiated by the appellant for nonpayment of the balance and no specific performance thereof in favour of the respondent can be ordered.
1. Jandu v Kirpal  EA 225
2. Mwangi Githu v Livingstone Ndeete Civ App 24 of 1979 (unreported)
3. Hughes v Griffin  1 WLR 23
4. Wainaina v Murai  Kenya LR 227
5. Hosea v Njiru & Others  EA 526
6. Bridges v Mees  2 All ER 577
7. Hyde v Pearce  1 All ER 1029
8. Roberts v Wyatt  2 Taunt 268
9. United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd  1 All ER 104
10. Walli’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd  QB 94
11. Kynoch Ltd v Rowlands  1 Ch 527, 534
12. Littledale v Liverpool College  1 Ch 19
13. Leigh v Jack (1879) 5 Ex D 264
1. Megarry, R. (1975) A Manual on the Law of Real Property, London: Stevenson & Sons, 4th Edn p 1013
2. Hailsham, Lord, et al, (Ed), (1975) Halsbury’s Laws of England, London: Butterworths, 4th Edn p 366
1. Land Control Act (cap 302)
2. Real Property Limitation (No 1) Act 1833 (UK)
3. Limitation Act 1939 section 10(1) (UK)
4. Limitation of Actions Act (cap 22) section 13(1)
ET Gaturu for Respondent