Solomon Muathe Mitau & 787 others v Nguni Group Ranch [2017] KECA 731 (KLR)

The court adopted Angote J.'s exposition distinguishing the two doctrines, noting the Land Act and Land Registration Act, both enacted in 2012, introduced acquisition of proprietary rights through prescription. Since the appellants' cause of action predated those Acts, the statutory prescription provisions had no application, and the claim fell to be assessed purely as one of adverse possession under the Limitation of Actions Act.

Relying on Francis Gitonga Macharia vs Muiruri Waithaka and Paul Macharia Wangunya, the court held that a registered proprietor becomes prima facie entitled to possession upon registration, so a possessor's adverse enjoyment can only begin then. The land was registered in the respondent's name in 1975; the delay in issuing the certificate until 1980 was explained on its face. Consequently, evidence of settlement before 1975 had no probative value for the claim.

The court found the claimants' occupation intermittent and not continuous or peaceful; the Provincial Administration was involved in repelling trespassers and the members resolved to subdivide to deal with incursions. Those born in 1973 were shown land by their fathers only in the 1990s, outside the limitation period, on hearsay. The others paid the chief or assistant chief to be shown land, so entry was permissive and could not be adverse. Blanket declarations without individual proof of possession were unsustainable.

The suit was never converted into a representative suit: no order was sought or made and no signed consents filed. Many listed claimants were minors without capacity to sue, some were members of the respondent, others dead or living elsewhere. The court, citing Zacharia Okoth Obado, affirmed that procedural rules make adjudication fair, just, certain and even-handed, and found sufficient basis for the trial court's finding that possession by those persons was not proved.