[1997] KECA 82 (KLR)
The Court of Appeal found that the appellant had been in possession of the suit land since the date of the sale agreement in 1977, and that the respondent's failure to transfer the land and obtain land control board consent constituted a breach of contract. The court held that the appellant's possession became...
Source-derived case information.
- Citation
- [1997] KECA 82 (KLR)
- Parties
- Appellant: Jason Masai; Respondent: Masai Kipsamii
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 181 of 1996
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- RO Kwach, AB Shah
- Legal Topics
- Adverse Possession, Limitation of Actions, Land Sale Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jason Masai
Appellant
Masai Kipsamii
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant acquired title to the suit land by adverse possession.
- 2 Whether the letters written by the clan chairman interrupted the appellant's possession for purposes of the Limitation of Actions Act.
- 3 Whether the respondent breached the contract for sale and failed to transfer the land.
Ratio Decidendi
The Court of Appeal found that the appellant had been in possession of the suit land since the date of the sale agreement in 1977, and that the respondent's failure to transfer the land and obtain land control board consent constituted a breach of contract. The court held that the appellant's possession became adverse from at least 1980, when the first warning letter was sent. The two letters from the clan chairman did not amount to interruption of possession, as they were not written by the respondent and there was no evidence of physical entry or legal action by the respondent to recover possession. The court concluded that the appellant had satisfied the requirements for adverse...
Court Disposition
appeal_allowed
Orders
- The appeal is allowed with costs.
- The appellant shall be registered as proprietor of the suit land (No. ELGON/CHEMOGE/270) in place of the respondent.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU
Civil Appeal 181 of 1996
JASON MASAI …………………..……………......................................……………….… APPELLANT
AND
MASAI KIPSAMII ………………………......................................………………….…. RESPONDENT
(Appeal from a judgment and decree of the High Court of Kenya at Bungoma (Justice Ong’udi) dated 21st February, 1996
IN
H. C. C. A. NO. 98 OF 1994)
************************
JUDGMENT OF THE COURT
Jason Masai, the appellant, agreed to buy from Masai Arap Kipsami, the respondent, a parcel of land measuring 100ft x 100ft for a sum of Kshs. 4,000/= on 14th June, 1977. The respondent did not transfer the said parcel of land (the suit land) to the appellant.
Whilst the respondent contested the fact of possession by the appellant of the suit land before the superior court (Ong’udi J) from the date of agreement for sale (14th June, 1977), the learned judge did not make a finding on that contested issue. The learned judge had this question posed before him. As he did not answer it , it falls to us now to decide the issue. It is common ground that the agreement for the sale of suit land was made on 14th June, 1977. It is common ground that the agreed purchase price was a paid in full by the appellant.
At least it is alleged by the respondent that one letter was sent to the appellant by the chairman of the respondent’s clan asking the appellant not to build any structures on the suit land. This was on 12th May, 1980. Again on 5th June, 1985, the chairman of the respondent’s clan by a letter of that date warned the appellant not to build on the suit land.
It is clear to us therefore that the appellant was in possession of the suit land soon after the date of the agreement for sale. If he was not in such possession there would have been no need for the chairman of the clan to write such letters to which we have referred.
It is clear that the appellant’s possession of the suit land became adverse to that of the respondent when the contract for sale of land was breached by the respondent and when consent of the relevant land control board was not obtained for the proposed sale. Going even by the evidence of the respondent there was adverse possession as from 1980,that is, for a period of more than twelve (12) years from the date the appellant was warned not to build.
The only issue that now falls to be decided by us is whether or not the two letters written by the chairman of the clan interrupted the possession of the suit land by the appellant. Those two letters were not written by the respondent. They were probably written at the instigation of the respondent’s family. There is no evidence whatsoever that the respondent attempted to obtain possession from the appellant either by physical entry or by filling a suit for possession. The said two letters, in our view, are insufficient to prevent the operation of the Limitation of Actions Act . Those letters did not in any way disturb the appellant’s possession of the suit land. The appellant has therefore acquired title to the suit land by adverse possession.
The upshot is that this appeal is allowed with costs and it is ordered that the appellant be registered as proprietor of the suit Land (No. ELGON/CHEMOGE/270) in place of the respondent. The appellant will have costs of the suit in the superior court. The registrar or Deputy registrar of the superior court may execute appropriate documents for the transfer of the suit land if the respondent does not.
Dated and delivered at Kisumu this 14th day of March, 1997.
R. O. KWACH
……………………
JUDGE OF APPEAL
A. B. SHAH
…………………..
JUDGE OF APPEAL
S. E. O. BOSIRE
…………………….
Ag. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR