Bidco Oil Refineries Bid to Get Plot Fails

By Eddyson Lugangwa Posted 05 January 2007 @ 09:58 am EET     Print     Reprint     E-Mail     Comments

NAIROBI (IBTimes.com) - A bid by a leading consumer good manufacturer to annex an idle plot in a city suburb has brought into focus the principle of forcible acquisition of property. Bidco Oil Refineries Ltd, through director Vimal Shah, had laid claim to a prime plot in the City's Rosslyn Estate by invoking a legal mechanism known as adverse possession.

However, the bid hit a dead end after judges found that the mandatory requirements for use of this tool had not been satisfied. Appellate judges Samuel Bosire, Philip Waki and J W Onyango-Otieno, while rejecting the application also declined to allow Bidco to be registered as the owner of the plot.

They also declined to issue orders of injunction against Rosslyn Development Ltd, saying Bidco never acquired additional and transferable rights that entitled it to benefit from adverse possession, at the time it bought a bigger plot in the neighbourhood.

The plot in contention, said to measure nearly an acre, has been described in the suit as "a wetland" with fast growing gravillea and gum trees and lies next to the main plot that Bidco occupies.

According to the Oxford Dictionary of Law, adverse possession "refers to the occupation of land in a manner intentionally inconsistent with the rights of the person entitled to it and without his permission. The occupation must be open, not secret and peaceful, not by force."

This legal instrument, provided for under Section 7 of the Limitation of Actions Act, Cap 22, allows a "trespasser" who remains in adverse possession for more than 12 years to acquire a squatter's title which is valid in law against the person who had been lawfully entitled to possession.

Simply put, it means legal action may not be brought against such a "squatter" to recover land after the end of the 12 years that adverse possession has lasted. This is the path Bidco chose to follow when it set its eyes on the idle portion of land, next to the one it bought on February 15, 1995, from Mr Francesco Stame and Mrs Maria Vittoria Stame, who had themselves acquired it two years earlier.

When Bidco started building a wall around their plot and around the contested portion, Rosslyn stopped it in its tracks, insisting that the targeted portion was not part of the plot it had bought.

When ensuing consultations between it and Rosslyn failed, Bidco went ahead and completed the wall fencing in September 2000 before filing a suit in the High Court the following month, in spite of an ultimatum to remove the wall and move out by October 2000.

The company asked the High Court to determine whether it was in adverse possession of the portion of land and should be registered as the owner.

It also asked for a permanent injunction restraining Rosslyn from trespassing or in any way interfering with the applicant's "quiet enjoyment and development of the portion". In supporting the application, Mr Shah had argued that the property had been in that condition - considered part of the larger plot they bought for "a very long time" and each successive owner had occupied it the way it is from 1968.

"The defendant's (Rosslyn's) right to the said portion of the property has been extinguished and are only holding the portion as trustees of the persons in adverse possession.

"The plaintiff has acquired the rights that all the previous persons who owned the property had and should therefore be registered as the owners of the said portion of land." argued Mr Shah.

But Rosslyn, through director Montague Charles Ruben, said there was never claim of ownership by previous owners including Mr and Mrs Stame, who sold their interest to Bidco.

Said Mr Ruben: "At all times, the plaintiffs have always known the boundaries of our land. Indeed we had the beacons re-established in 1996. "We find the plaintiff's prayer cunning and made in bad faith. This is because they have admitted that the portion of land belongs to us."

Mr Justice Tom Mbaluto, who heard the case, determined on June 5, 2001, that adverse possession had not arisen in favour of Bidco and that their suit had no merit. This is the verdict the three Court of Appeal judges upheld in their judgment delivered on December 8, 2006, when they declared that Bidco had failed to prove its case to warrant the declarations sought.

"The learned judge of the superior (High) court was, in our view, right in making the finding that the appellant's case was not proved on a balance of probability and in dismissing it," said the three judges.

They declared that in the face of detailed affidavits made available in court and remained unchallenged, Mr Shah's assertion that his company was the previous owners of plot 36 who had occupied the disputed portion and planted trees thereon, rings hollow.

"Physical possession of the disputed portion was only asserted by the appellant in 1997 when they started excavating along the existing broken fence and dug foundation for the construction of the a boundary wall principally for security reasons.

"We have said enough to show that the appellant was not in possession of the disputed portion of land by themselves or through the previous owners of plot 36 which they purchased in 1995.

The previous owners of plot 36 never claimed any ownership or acquired any rights over the disputed portion of land. Consequently, they could not confer any rights on the portion to Bidco which they had not acquired by the time they sold their plot to Bidco in 1995.

They further said Bidco's alleged occupation of the disputed portion of land had lasted for only "5 or so years" and not 12 years.