Procedure of an Adverse Possession Claim and Defense

Chevron (k) Ltd v Harrison Charo Wa Shutu

Court of Appeal at Malindi

Civil Appeal No. 17 of 2016

Asike-Makhandia, W Ouko, K M’inoti JJA

October 14, 2016

Reported by Phoebe Ida Ayaya

Land law - adverse possession - amount of time required for one to claim adverse possession - adverse possession could only be claimed on private property - mode of instituting adverse possession claim

Civil practice and procedure - pleadings – procedure on adverse possession claims - originating summons via a vis statement of defense - defense failing to comply with the rules of pleading, but on the face of it answering the claim – failure to comply with rules of pleadings - Limitation of Actions Act sections 7,17

Brief facts

The Appellant, Chevron (K) Ltd, before its change of name, was known as Caltex Oil (K) Ltd and which was subsequently bought by Total (K) Ltd, was by stand premium of Kshs. 150,000 granted a lease of MALINDI LR. PORTION NO. 8897 (the suit premises) for a term of 99 years from May 1, 1994.

The Appellant instituted a suit in the Malindi Environment and Land Court, being Civil Case No. 29 of 2008 against the respondent, Harrison Charo wa Shutu claiming that the latter had unlawfully trespassed on the suit premises and praying that he, his servants or agents be compelled by an order of mandatory injunction to demolish all permanent and temporary structures on the suit premises and to cart away the debris and that they further be restrained by a permanent injunction from trespassing, dealing, occupying or in any way interfering with the appellant’s indefeasible right over the suit premises. Contemporaneous with the suit the Appellant took out a notice of motion for temporary injunctive orders pending the hearing and determination of the suit.

After evaluating the evidence by both sides the Judge was of the opinion that from,  1994, the year it was registered as  proprietor of the suit premises, the appellant did not at any time occupy or utilize it; that by the time  the action was  brought in 2008 there was evidence that the Respondent had been in occupation for a period that would entitle him to raise the defense of limitation; that in the absence of a Part Development Plan (PDP) it was evident that the appellant did not visit the suit premises to ascertain its state; that had it done so it would have been apparent that it was not vacant; and that pursuant to sections 7 and 17 of the Limitation of Actions Act, and after the expiration of over 12 years,  the appellant was precluded from bringing an action to recover the suit premises. With that the appellant's suit was dismissed with costs.

The Appellant being aggrieved by the dismissal of its claim challenged the decision on some thirteen grounds.

Issues

i) Whether the Appellant had the right to bring the action of adverse possession on the suit property.

ii) Whether the in failing to uphold the Appellant's objection to the defense of adverse possession being raised in the statement of defense rather than by an originating summons or counter-claim was wrong.

iii) What was the procedure of raising adverse possession claims and defense?

iv) Whether the evidence that the Respondent was entitled to the suit premises by adverse possession was admissible.

Held

1. It is a well-known principle of company law that, being an artificial body, a company can only act through the agency of its organs, the board of directors and shareholders.  Where, for example, it is demonstrated that a suit was instituted without the resolution of the board, the company couldn’t be said to be before the Court.
2. Order 37 Rule 7 of the Civil Procedure Rules, states that “An application under section 38 of the Limitation of Actions Act shall be made by originating summons”, but the courts have since held that a claim by adverse possession can be brought by a plaint. Where a party like the respondent in the appeal was sued for vacant possession, he could raise a defense of statute of limitation by filing a defense or a defense and counter-claim.
3.  It was only when the party applied to be registered as the proprietor of land by adverse possession that Order 37 Rule 7 required such a claim to be brought by originating summons. The procedure of originating summons was not suitable for resolving complex and contentious questions of fact and law.  Be that as it may, and to answer the question, whether it was erroneous to sanction a claim of adverse possession only pleaded in the defense, like the appeal the claim for adverse possession was in the form of a defense in an action for eviction. 
4. The Appellant was unable to confirm the actual date of trespass yet it was from that date that it would be established whether or not the Appellant’s claim to recover the suit premises was statute-barred.  A registered owner of land by the provisions of section 7 of the Limitation of Actions Act could not bring an action to recover land after the end of twelve years from the date on which the right of action accrued to him, or, if it first accrued to some person through whom he claimed, to that person.
5.  At the expiration of the twelve-year period the proprietor’s title would be extinguished by operation of the law and section 38 of the Act permitted the adverse possessor to apply to the High Court for an order that he be registered as the proprietor of the land.  Therefore the critical period for the determination whether possession was adverse was 12 years and the burden was on the person claiming to be entitled to the land by adverse possession to prove, not only the period but also that his  possession was without the true owner’s permission, that the owner was dispossessed or discontinued  his possession of the land, that the adverse possessor had done acts on the land which were inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it.
6. The objective sought to be achieved by visiting the suit premises was not absolutely necessary in view of the two reports made to the appellant, first by the surveyors, Geocard Services Limited and a second one by the valuers, Tysons Limited, both of which left no doubt that there were people living on the suit premises and acknowledged the existence of three structures, two temporary/semi-permanent and a third permanent one, under construction.
7.  It is a settled principle that a claim for adverse possession could only be maintained against a registered owner the property.
8. By building structures on the suit premises without obtaining permission from the Appellant, the Respondent manifested animus possidendi, a clear mind and intention of dealing with the suit premises as if it was exclusively his and in a manner that was in clear conflict with the Appellant's rights. The Appellant was, as such dispossessed of the suit premises by those acts. The Respondent's acts were nec vi, nec clam, nec precario (that is, neither by force, nor secretly and without permission).
9. The Appellant ought to have exercised diligence at the time it purchased the suit premises by inspecting it.  The manner in which it dealt with the acquisition was evidently contrary to its own policy not to purchase land occupied by squatters or one with a dispute.
10. Section 38 of the Limitation of Actions Act provides that whenever an adverse possessor claims to have become entitled to land he may apply to the High Court for an order that he be registered as the proprietor. When the Respondent elected to raise the defense of adverse possession without a counter-claim, he denied himself the opportunity to apply to be registered the proprietor of the suit property.  The power of the Court to do substantive justice is today wider than before.  The Respondent’s occupation of the suit property was averse to that of the Appellant; and that the latter’s was so extinguished.

Appeal dismissed