ADVERSE POSSESSION: LAND SELLERS BEWARE

By Michael Murungi

(This article was published in the Daily Nation newspaper on 17th Sept. 07, pg 14 column 2)

Situma v Cherongo
Court of Appeal at Nairobi
PK Tunoi, EM Githinji & J.W. Onyango-Otieno JJ A

July 31, 2007

The Court of Appeal has reiterated that where a purchaser of agricultural land is permitted to be in possession of the land by the seller pending the completion of the sale and the transaction thereafter becomes void because the parties fail to obtain the consent of the Land Control Board, such permission is terminated by the operation of law and the continued possession, if it is not illegal, becomes adverse from the time the transaction becomes void.

In law, adverse possession is the occupation of the land of another person against his wish and in opposition to his title. Where such possession continues without the interruption of an eviction for a period of over 12 years, then the squatter becomes legally entitled to the land by the operation of the doctrine of adverse possession.

Dismas Situma entered into an agreement for the purchase of 19 acres a piece of land in Bungoma from Nicholas Cherongo in 1972. Cherongo had previously given possession of the land to Situma who had settled on the land with his family. Unfortunately, Situma passed away in May 1979. He was survived by his family, which included Joseph Mutafari, his eldest son.

In 1988, Mutafari filed proceedings in the High Court seeking to be registered as the absolute owner of the land which he claimed to have become entitled to by virtue of being in adverse possession of it for a period of over 12 years. In his affidavit, he swore that he was the son and administrator of the estate his father and that after his father had paid the full purchase price for the land, Nicholas had refused to sign the transfer documents and Mutafari, along with the rest of his father’s family, had resided on the land peacefully for a period of 17 years.

The dispute was finally determined when the Court of Appeal comprised of Appellate Judges P.K. Tunoi, E.M. Githinji and J.W. Onyango Otieno delivered their unanimous opinion from an appeal against a previous decision of the High Court on 31st July, 2007. The Court of Appeal stated that where a squatter or the prospective purchaser of the land is in factual adverse possession, such possession will not be terminated merely because the true owner sends a letter requiring him to vacate the premises. The clock of 12 years will continue to tick in favour of the squatter unless and until he vacates or is evicted from the land or he otherwise acknowledges the true owner’s title.

The Court found that Situma, Mutafari’s father, had been in adverse possession of the land when the sale agreement became void i.e. upon the expiry of the time within which the parties were required by law to obtain the consent of the land control board to the transaction. This was about 12th June, 1971 to 31st May, 1979 when he died, a period totaling to 8 years. That period was however, less than the statutory minimum period of 12 years required to establish a claim by adverse possession. It then followed that Situma had not acquired the land by adverse possession by the time of his death and his estate, which was represented by his son Mutafari, was not entitled to the land either. The appeal was therefore dismissed.