A man who occupied a Nairobi property for 25 years has been confirmed as its lawful owner after the Court of Appeal threw out the original owner’s challenge.
Hardev Kalsi Singh took possession of the land on Nyuki Close in 1987 after Mohamed Aslam failed to repay a debt.
The property was owned by Mohammed Azhar and four others as tenants in common. Azhar, who was Aslam’s son, later sued to recover rent and then challenged Singh’s adverse possession claim.
“The first respondent [Singh] avers that he moved into the suit property forcefully after Mohamed Aslam failed to pay back his monies. He contends that he has been in possession and sole occupation of the suit property, paying all rates and utility bills,” the court heard.
Singh had no dealings with the appellant until 2012, when Azhar demanded Sh15 million in rent arrears for the 25 years.
He then instructed auctioneers to levy distress on Singh’s goods, prompting the first respondent to sue for title ownership.
Singh sought a declaration that the property “be deemed to belong to him under adverse possession, that he be registered as the owner of the suit property and that a permanent injunction be issued against the applicant and his agents restraining them from levying distress or trespassing onto the suit property in breach of the respondent’s rights as owner in adverse possession”.
He further sought that an order be issued directing the Land Registrar to register the suit property in favour of the respondent and costs of the suit be awarded to him.
But Azhar argued that Singh’s entry was forceful, making it illegal, and that he could not claim ownership against co-owners who were not aware of his occupation.
He maintained that his persistent rental demands and the subsequent tribunal case proved that a landlord-tenant relationship existed, thereby negating the peaceful, uninterrupted occupation required to claim adverse possession.
However, the three-judge bench, comprising Court of Appeal president Daniel Musinga, Justice Paul Lilan and Justice Johnson Okello, ruled against Azhar.
“The law allows a person to acquire title to land after 12 years of uninterrupted, open and hostile occupation, as provided for under section 13 of the Limitation of Actions Act, Cap 22,” the judges ruled.
“Indeed, the doctrine of adverse possession avails where land owned by a person is claimed by a trespasser on the basis that he trespassed on the land with the knowledge of the landowner.”
In the end, the appellate court agreed with the trial court’s decision.
“Hostile entry does not necessarily mean with aggression or conflict. As long as the entry is without permission or consent of the registered owner, it is hostile. We see no reason to interfere with the trial court’s finding on that issue.”
They noted that Azhar failed to effectively assert his rights for 25 years.
On the issue of co-ownership, the court ruled that a trespasser can claim adverse possession against all co-owners if possession was without anyone’s permission.
“A co-tenant in peaceful possession is presumed to possess it on behalf of all the co-tenants. Adverse possession, therefore, in this case succeeds even against the other co-owners since there was no permission or otherwise granted to the 1st respondent,” the judgement states.
The appeal was dismissed, and each party was ordered to bear its own costs.
