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Ruth Wangari Kanyagia v. Josephine Muthoni Kinyanjui

(2017) JELR 95026 (CA)

Court of Appeal  •  Civil Appeal 95 of 2014  •  17 Feb 2017  •  Kenya

Coram
Philip Nyamu Waki, Paul Kihara Kariuki, Patrick Omwenga Kiage

Judgement

JUDGMENT OF THE COURT

1. The ogre of ‘adverse possession’ continues to trouble landowners who on acquiring title to their land feel they have the protection of the law henceforth, only for the land or a portion of it to be given out to a squatter due to effluxion of time. In some quarters around the world the doctrine has been severely criticized and reforms called for. Three examples will suffice to illustrate this:

2. There were murmurs of discontent expressed in the celebrated United Kingdom case of J. A. Pye (Oxford) Ltd and Another v. The United Kingdom, European Court of Human Rights, Grand Chamber Application No. 44302 of 2002 which was originally filed before the High Court in England (Neuberger, J) but went through a succession of five different appellate jurisdictions up to the Grand Chamber of the European Court of Human Rights over a period of nine years. Neuberger J. stated in part, as follows:

“..it is hard to see what principle of justice entitles the trespasser to acquire…

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