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Court of AppealDismissedCivil Appeal No. 8 of 2018· [2018] KECA 194 (KLR)

Raphael Kahindi Kawala v Mount Elgon Beach Properties Limited [2018] KECA 194 (KLR)

Court of Appeal of Kenya
8 November 2018
WKW. KaranjaMartha Karambu KoomeM. K. KoomeJOJ. Otieno-Odek
3,875 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that claiming land by adverse possession requires hard proof of 12 years' actual occupation - claims without physical evidence on the ground fail.

What this practically means

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Executive summary

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The Court of Appeal (W. Karanja, M. K. Koome and J. Otieno-Odek, JJ.A) dismissed the appellant's appeal against the Environment and Land Court's dismissal of his Originating Summons claiming title by adverse possession of L.R. No. 20824 (C.R. 27288), Kilifi, registered in the name of Mount Elgon Beach Properties Limited under a 99-year grant from 1st November 1993. The appellant alleged occupation since 1966, building permanent houses and planting coconut and mango trees. The trial court had found, after a site visit, that the land was unoccupied, uncultivated and bushy, and dismissed the claim with costs. On appeal, the court reaffirmed that a first appellate court must re-evaluate the evidence and reach its own conclusions. It held that the burden of proving adverse possession rests on the person asserting it, and that adverse possession is a fact observed upon the land, not in the title. The appellant's testimony and that of PW2 were contradicted by DW2 (the area chief), the affidavits of the neighbouring Mwanongo family, and the trial court's site visit report recording no houses and no cultivation. The court held the alleged occupation was neither a matter of general nor local notoriety suitable for judicial notice under Section 60(1) of the Evidence Act. While agreeing that the trial judge erred in criticising the appellant for not calling family members as witnesses - a litigant chooses his own witnesses - the court held the error harmless because the evidential burden had shifted to the appellant and was not discharged. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the appellant discharged the legal and evidential burden of proving adverse possession for over twelve years

Holding

The appellant did not discharge either burden. His testimony and that of PW2 were contradicted by DW2's testimony, the affidavits of the Mwanongo family, and the site visit report by the trial court, all indicating the land was unoccupied and uncultivated.

Reasoning

The court re-evaluated the entire record as on a first appeal. The site visit report by the late S. Mukunya, J recorded no cultivation, no houses and only two coconut trees, which corroborated DW2's testimony. Photographs tendered by the appellant could not show how long structures had been on the land. Conflicting evidence meant occupation was not proved to the required threshold.

p. 4
02

Whether the trial court erred in declining to take judicial notice of the appellant's alleged occupation

Holding

No error. Judicial notice applies only to notorious facts or matters capable of immediate, accurate and undisputable demonstration; the conflicting evidence showed the alleged occupation was neither of general nor local notoriety.

Reasoning

Relying on Section 60(1) of the Evidence Act and Gupta v Continental Builders Ltd, the court held that the party seeking judicial notice bears the burden of proving notoriety. Here neighbours gave contradictory testimony on whether the appellant occupied or cultivated the land, so the fact was disputed and not suitable for judicial notice.

p. 4
03

Whether the trial court erred in holding that the appellant ought to have called his family members to testify

Holding

The trial judge erred on this point: a litigant chooses how many and which witnesses to call, and the number or family relationship of witnesses is immaterial. However, the error did not affect the outcome because the evidential burden had shifted to the appellant and was not discharged.

Reasoning

Once the respondent called DW2 and the Mwanongo family affidavits denying occupation, the evidential burden shifted to the appellant, who failed to rebut that testimony. The appellate court therefore found the trial court's criticism of the appellant for not calling family members erroneous but harmless, and affirmed the dismissal.

p. 4
04

Whether the trial court erred in preferring DW2's evidence over PW2's without expressly addressing witness credibility

Holding

Although the trial court did not expressly determine the credibility of the two witnesses, the appellate court's own re-evaluation satisfied it that the record supported the trial court's findings of fact.

Reasoning

The court applied the settled principle that an appellate court rarely interferes with findings of fact unless the trial judge misdirected himself or acted on or omitted relevant matters so as to reach a wrong conclusion. On re-evaluation, DW2's testimony was consistent with the site visit report, and the record supported the final findings despite the omission on credibility.

Legal principles established

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  • The burden of proving title by adverse possession rests upon the person asserting it, and adverse possession is a fact to be observed upon the land, not in the title.
  • A court on a first appeal must re-analyse and re-assess the evidence and reach its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses.
  • Judicial notice can only be taken of notorious facts or matters capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy; a party requesting judicial notice bears the burden of establishing notoriety.
  • An owner is deemed in possession of property so long as there is no intrusion; non-use of the property even for a long time does not affect his title unless another takes possession and asserts a right over it.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Evidence Act (Cap. 80, Laws of Kenya)Section 60(1)

Cases cited (11)

  • Emmanuel Mwangemi vs. Teita Sisal Estate Limited
    (2016) eKLR
  • Kenya Ports Authority vs. Kuston
    Civil Appeal No. 315 of 2005
  • Selle vs. Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
  • Karnataka Board of Wakf vs. Government of India & Others
    (2004) 10 SCC 779
  • Gabriel Mbui vs. Mukindia Maranya
    eKLR
  • Mweu vs. Kiu Ranching & Farming Co-operative Society Ltd.
    [1985] KLR 430
  • Alfred Warimo vs. Mulaa Sumba Baraza
    Civil Appeal No. 186 of 2011 (Ksm)
  • Commonwealth Shipping Representative v P. & O. Branch Service
    [1923] A.C. 191
  • Gupta vs. Continental Builders Ltd
    (1976-80) 1 KLR 809
  • Ruth Wangari Kanyagia vs. Josephine Muthoni Kinyanjui
    (2017) eKLR
On appeal from
Environment and Land Court at Malindi
Malindi ELC No. 230 of 2014 (O.S)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory first appeal against judgment of the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Raphael Kahindi Kawala v Mount Elgon Beach Properties Limited [2018] KECA 194 (KLR)", Case Analysis (2018). Civil Appeal No. 8 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/194/eng@2018-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.