Kagua v Gachigi

High Court, at Nairobi

October 11, 1982

Potter Ag J

Civil Case No 1769 of 1980

Adverse possession - application of the doctrine of adverse possession - whether a claim of adverse possession is sustainable.

Trust - controlled land held in trust - creation of a trust in controlled land - whether consent of Land Control Board necessary.

The plaintiff sued the defendant for eviction stating that he (the plaintiff) was the registered proprietor of the suit land. The plaintiff had made an oral agreement with the defendant in 1967 for the sale of part of the land after which the defendant was allowed to occupy it. Further, a written agreement was made in 1976 in which the plaintiff acknowledged receipt of part of the purchase price. None of these agreements had the consent of the Land Control Board. Although Land Control Board forms were thereafter executed, the plaintiff failed to take the action necessary to get the consent. The defendant counterclaimed for an order directing the plaintiff to transfer the land to him and for a declaration that the plaintiff held the land in trust for him or that he was entitled to the land by virtue of the doctrine of adverse possession.

Held:

1. Both the verbal and the written agreements were void as they lacked the consent of the Land Control Board. As these agreements were void, the defendant could not rely on the contract.
2. Although the agreements were void, the fact that they were made was admissible to show that the defendant had been allowed onto the land with the consent of the vendor.
3. The creation of a trust is a controlled transaction for which Land Control Board consent has to be given, in the absence of such consent, no trust existed in favour of the defendant.
4. For a claim of adverse possession to succeed it is material that the person has to have been in exclusive possession for twelve years. The defendant was in possession for less than the requisite period.
5. In the absence of consent, the defendant is entitled to return of the money paid under the contract.

Judgment for the plaintiff.

Cases

Githuchi Farmers Co Ltd v Gichamba & Another [1973] EA 8 Approved & Applied

Statutes

Limitation of Actions Act (Cap 22) Section 13(2)