Kapanda v Misanjo (Civil Appeal 90 of 2015) [2018] MWHCCiv 10 (30 January 2018)

Case summary

The appellant in this matter claimed that the respondent had encroached onto her land. The lower court found for the respondent and dismissed the claim. The appellant argued that the  learned  Magistrate  erred  in  law  and fact  in  ordering  that  the defendant acquired the land in dispute through adverse possession yet there was evidence that the appellant protested the defendant's conduct and further that the magistrate had erred  in  law  in  disregarding  the  laws  of inheritance.

The court held that the evidence rendered by the appellant, was insufficient to counter the argument on adverse possession. The defendant and his father had used this land for over 35 years without any disturbance legally for growing trees. The court held that if a person occupied land without the sanction of the owner for 12 years, he was deemed to have acquired it through adverse possession. The court went on to hold that the claim had nothing to do with distribution of intestate property. The pleadings merely spoke of the respondent’s encroachment into her land and nothing to do with intestate succession. That being the case, the lower court would have erred if it had decided the case on the basis of the act when inheritance was not an issue before the lower court. 
Accordingly, the case was dismissed.

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