M'Kirigia (Sued as Legal Representative of M'Rimberia M'Mururu) v Murigu & 10 others (Civil Appeal 142 of 2019) [2025] KECA 28 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that people who openly occupy land peacefully for over 12 years can win ownership through adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Proof of adverse possession
The respondents proved continuous, uninterrupted, open and peaceful occupation of their suit portions for more than 12 years and are entitled to be registered as proprietors by adverse possession
The claimant bears the burden of showing continuous, uninterrupted, open occupation without licence or permission, dispossessing the owner for at least 12 years. The respondents' occupation since 1996 with permanent developments was uncontroverted by the appellant, who did not sufficiently respond to or disprove the claim of over 12 years' occupation, and no interruption of possession was demonstrated.
Raising a new issue for the first time on appeal
The contention that the suit was not a representative suit could not be entertained on appeal because it was not raised or objected to before the trial court
The appellant never objected in the trial court concerning the production of a letter of authority for the 1st and 4th respondents to testify. Following Visram & Karsan v Bhatt, a new issue not pleaded or canvassed below cannot be argued on appeal unless the evidence establishes beyond doubt that full investigation would have supported the plea.
Whether the respondents' claim shifted from purchasers to adverse possession
The claim before the court was one of adverse possession; the bona fide purchaser issue was never litigated and no sale agreements were produced or interrogated at trial
The grievance in the amended Originating Summons was that the respondents had lived on the subdivided portions for over 12 years and were entitled to them by adverse possession. Nothing in the proceedings shows the bona fide purchaser question was litigated, nor that sale agreements were produced in evidence and interrogated by the trial court.
Peaceful and quiet possession
The appellant failed to establish that the respondents prevented her access or disturbed her possession; her share having been allocated in the Succession Cause, she had no basis to interfere with the respondents' occupation
The succession court ordered the suit property shared equally between the appellant, Geremano and Moses. Having had her rightful share, the appellant had no reason to interfere with the peaceful and quiet possession of the portions where the respondents already lived; the claim of prevention of access was a mere unestablished allegation.
Legal principles established
#- The burden of proving adverse possession lies on the claimant, who must show continuous, uninterrupted, open occupation without licence or permission, dispossessing the registered owner for not less than 12 years
- A new issue raised for the first time on appeal, which was not pleaded or canvassed in the trial court, should not be allowed to be argued
- Submissions are not evidence and cannot substitute for evidence subjected to the rules of evidence
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- Environment and Land Court
- Not stated (amended Originating Summons dated 16th September 2015)
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31(1) of the Court of Appeal Rules 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M'Kirigia (Sued as Legal Representative of M'Rimberia M'Mururu) v Murigu & 10 others (Civil Appeal 142 of 2019) [2025] KECA 28 (KLR)", Case Analysis (2025). Civil Appeal No 142 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/28/eng@2025-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.