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Court of AppealDismissedSecond appeal from Environment and Land Court at Kisumu; cross-appeal dated 21st September, 2023· [2025] KECA 339 (KLR)

Derry alias Margaret Atieno Kasyoki v Lwango (Civil Appeal E221 of 2022) [2025] KECA 339 (KLR)

Court of Appeal
21 February 2025
4,874 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A title deed alone doesn't win land disputes in Kenya — the Court of Appeal ruled an unprocedurally acquired title offers no protection against a long-standing occupant.

What this practically means

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Executive summary

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This was a second appeal before the Court of Appeal at Kisumu against the judgment of Ombwayo J. of the Environment and Land Court (13th May 2022), which had affirmed the decision of the Principal Magistrate's Court at Winam dismissing the appellant's trespass suit and allowing the respondent's counterclaim save for the adverse possession prayer. The appellant, registered proprietor of Kisumu/Pandpieri/1833 since 22nd February 1993, alleged that the respondent and his family trespassed on the land in 2017/2018. The respondent counterclaimed that the land was ancestral land held in trust and that her title was fraudulently and unprocedurally acquired. The Court framed five issues: limitation, trespass, jurisdiction over adverse possession, locus standi, and re-evaluation of evidence. It held that although the first appellate Judge erred in applying Section 7 of the Limitation of Actions Act to a trespass claim - trespass being a continuing tort not subject to that limitation - the appellant's title, challenged at its root, required her to prove the legality of its acquisition, which she failed to do, there being no sale agreement or transfer documents and title having passed through three owners in a single day. Her title was therefore unprocedurally acquired and not indefeasible. The Court affirmed that Magistrates' Courts lack jurisdiction over adverse possession claims reserved to the Environment and Land Court under Section 38 of the Limitation of Actions Act, dismissing the respondent's cross-appeal. It also upheld the respondent's locus standi to counterclaim as an occupant. The appeal and cross-appeal were both dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether the appellant's suit in trespass was time barred

Holding

The suit was not time barred; trespass is a continuing tort, but the learned Judge erred in applying Section 7 of the Limitation of Actions Act, a provision applicable to adverse possession claims, not to trespass claims

Reasoning

The plaint was founded on the tort of trespass, alleging entry in 2017/2018. Trespass is a continuing tort and each day of continued occupation gives rise to a fresh cause of action. The learned Judge overlooked the nature of the claim and misapplied Section 7 of the Limitation of Actions Act, which applies to actions to recover land, not to trespass. However, this error did not save the appeal because the respondent's occupation was inconsistent with trespass.

p. 5
02

Whether the appellant's title was indefeasible and her trespass claim established

Holding

The appellant's title, having been acquired unprocedurally, was not indefeasible; the respondent's possession was inconsistent with the tort of trespass

Reasoning

Once the respondent challenged the appellant's root of title, the burden shifted to the appellant to prove the legality of her acquisition. She produced no sale agreement, proof of payment, or transfer documents, and could not explain how title passed through three owners and a title deed issued all on 22nd February 1993. Relying on Munyu Maina v Hiram Gathiha Maina and Section 26 of the Land Registration Act, the Court found the title unprocedurally acquired and thus not protected by indefeasibility.

p. 6
03

Whether the trial court had jurisdiction to grant orders on adverse possession

Holding

Magistrates' Courts lack jurisdiction over adverse possession claims, which are reserved for the Environment and Land Court by Section 38 of the Limitation of Actions Act; the cross-appeal failed

Reasoning

Sections 26(3) and (4) of the Environment and Land Court Act confer on gazetted magistrates jurisdiction over civil matters involving occupation and title to land within pecuniary limits, but adverse possession claims under Section 38 of the Limitation of Actions Act are specifically reserved to the Environment and Land Court. Following Pauline Chemuge Sugawara v Nairuko Ene Mutarakwa Kiruti, the Court held that a strict interpretation of Section 38 excludes Magistrates' Courts, especially where the value of the land may exceed their pecuniary jurisdiction.

p. 8
04

Whether the respondent had locus standi to lodge the counterclaim

Holding

The respondent had locus standi; having been sued as an occupant, his counterclaim laying out his family's interest gave him the necessary standing

Reasoning

The appellant raised the locus standi issue for the first time on first appeal and never canvassed it at trial. The Court agreed with the first appellate court that the respondent, sued as an occupant, was entitled to counter the trespass allegations by laying out his family's interest in the land. It was incoherent for the appellant to sue the respondent and then contest his standing to defend himself.

p. 8

Legal principles established

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  • Continuing trespass gives rise to a fresh cause of action day to day, so a claim in trespass is not time-barred merely because entry occurred more than twelve years earlier; Section 7 of the Limitation of Actions Act does not bar such claims
  • Where a registered proprietor's root of title is challenged, the proprietor must go beyond the title instrument and prove the legality of the acquisition; a title obtained unprocedurally is not clothed with indefeasibility
  • Magistrates' Courts do not have jurisdiction to determine claims of adverse possession, which are by virtue of Section 38 of the Limitation of Actions Act reserved to the Environment and Land Court
  • A defendant sued as an occupant of land who sets out his interest in a defence and counterclaim has the necessary locus standi to seek cancellation of the plaintiff's title

Court orders

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  1. 1.The appeal before the Court of Appeal is dismissed
  2. 2.The respondent's cross-appeal dated 21st September, 2023 is dismissed
  3. 3.Each party shall bear their own costs of the appeal

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38
  • Trespass Act, Cap 294Section 3(1)
  • Land Registration ActSection 26(1)
  • Environment and Land Court Act, 2011Sections 26(3) and (4)
  • Magistrates' Courts ActSection 7
  • Constitution of Kenya, 2010Article 169(2)

Cases cited (6)

  • Law Society of Kenya Nairobi Branch v. Malindi Law Society & 6 others
    [2017] eKLR
  • Kenya Breweries Ltd v Godfrey Odoyo
    [2010] eKLR
  • Stanley N Muriithi & another v Bernard Munene Ithiga
    [2016] eKLR
  • Muthiora v. Marion Muthama Kiara (Suing on behalf of the Estate of Erastus Muthamia Kiara - Deceased)
    (Civil Appeal 43 of 2017) [2022] KECA 28
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Pauline Chemuge Sugawara v. Nairuko Ene Mutarakwa Kiruti (Sued in her Capacity as the Administratrix of the Estate Mutarakwa Kiruti Lepaso alias Mutarakwa Kiroti Lepaso and in her own capacity) and 3 others
    Civil Appeal No. E141 of 2022
On appeal from
Environment and Land Court at Kisumu
null
Jurisdiction invoked
Second appeal to the Court of Appeal under Article 164 of the Constitution (as a second appellate court confined to matters of law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Derry alias Margaret Atieno Kasyoki v Lwango (Civil Appeal E221 of 2022) [2025] KECA 339 (KLR)", Case Analysis (2025). Second appeal from Environment and Land Court at Kisumu; cross-appeal dated 21st September, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/339/eng@2025-02-21

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