Namadoa v Gina (Suing on Behalf of his Father (DCD)Godfrey Adam Ogwa) (Civil Appeal E108 of 2022) [2025] KECA 479 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an adverse possession claim, holding that a buyer occupying land under a sale agreement is a licensee who cannot claim the seller's land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's claim was time barred under the Limitation of Actions Act
- 2.Whether the suit was res judicata in light of Busia ELC No. 70 of 2013
- 3.Whether the respondent's father acquired title to the suit property by adverse possession
- 4.Whether the appellant was an innocent purchaser for value without notice
- 5.Whether judgment was entered against a party (James Ouma Natalio) who had not been served or heard
Key legal issues
#Whether adverse possession matured in favour of the respondent's deceased father
It did not. Occupation from 1991 was with the consent of the registered owner Natolio under a sale agreement, making the deceased a licensee; on his departure in 2004 the adverse possession ceased before the twelve years matured, and mere reliance on trees left on the land showed no animus possidendi.
The court reasoned that occupation founded on a sale agreement is by licence of the owner, and until the licence is determined possession cannot be adverse. Section 13(2) of the Limitation of Actions Act provides that where the land ceases to be in adverse possession before the right is barred, a fresh right of action accrues only when someone again takes adverse possession. The deceased wholly vacated in 2004, and his son-in-law's later cultivation was not shown to be adverse. Possession of trees left behind cannot pass possession to the trees; animus possidendi was absent.
Whether the trial court erred in entering judgment affecting a non-party
Yes. The final orders affected James Ouma Natalio's interest, yet he or his representative was neither enjoined nor served, contrary to Article 50(1) of the Constitution and Order 37 rule 7(3) of the Civil Procedure Rules, 2010.
The court accepted the appellant's submissions, supported by Grace Wairimu Sorora v Chaka Limited, Chevron (K) Ltd v Harrison Charo Wa Shutu and Mtana Lewa v Kahindi Ngala Mwagandi, that the registered owner at the time of accrual of the adverse right is a necessary party who must be served with the originating summons. Since judgment was entered against a party who had not been served, hence not heard, the trial judgment could not stand.
Whether the suit was time barred and res judicata
The court agreed with the trial judge that the claim was neither time barred nor res judicata, since the earlier Busia ELC No. 70 of 2013 was a contractual claim for specific performance while the present claim was for ownership by adverse possession.
Although the parties and the suit land were the same, the subject matter of the two suits differed: one sought specific performance of a contract, the other claimed possession and ownership through the doctrine of adverse possession. Res judicata requires identity of the matter in issue, and the different causes of action defeated that identity. The court also agreed that the appellant misapprehended the applicability of the statute of limitations.
Whether the appellant was an innocent purchaser for value without notice
The Court of Appeal did not make a definitive finding on this issue; it found the appeal merited because adverse possession had not matured and because of the non-joinder. The trial court had found the appellant was fully aware of the existing dispute and thus could not rely on the defence.
The trial court had held the appellant did not meet the criteria as he produced no sale agreement with Natolio showing payment, and he purchased fully aware of the dispute between the respondent and Natolio. The appellate court's dispositive reasoning rested on the licence/purchaser bar to adverse possession and the failure to serve Natalio, rather than on reversing the innocent purchaser finding as such.
Burden and threshold of proof in adverse possession claims
Because adverse possession orders extinguish rights to property, the burden is higher and lies squarely on the claimant, who must prove the date possession began, its nature, the owner's knowledge, its duration, and that it was open and undisturbed for twelve years.
Drawing on Ruth Wangari Kanyagia v Josephine Muthoni Kinyanjui, Richard Wefwafwa Songoi v Ben Munyifwa Songoi, Samuel Kihamba v Mary Mbaisi and Chandrakant Devraj Shah v Alibhai Haji, the court held that a claimant must prove activities actually carried out on the land, not merely allege them, and that possession must be without force, secrecy, or licence of the owner, with an apparent dispossession of the landowner.
Legal principles established
#- A purchaser in occupation under a sale agreement holds as a licensee, and a purchaser of land cannot simultaneously claim adverse possession against his vendor; until the licence is determined, occupation cannot be adverse.
- The burden of proof in adverse possession claims is heightened because the orders extinguish rights to property, and lies squarely on the person claiming adverse possession.
- Under section 13(2) of the Limitation of Actions Act, where land ceases to be in adverse possession before the right is barred, a fresh right of action does not accrue unless and until some person again takes adverse possession of the land.
- A party whose interests are directly affected by orders of the court must be joined and served; judgment entered against a party who has not been served and heard violates Article 50(1) and Order 37 rule 7(3) of the Civil Procedure Rules.
- A suit based on a claim for adverse possession is not res judicata a prior suit founded on a contractual claim for specific performance, despite the same parties and same land, because the subject matter and cause of action differ.
Court orders
#- 1.Appeal allowed
- 2.Costs of the appeal awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Environment and Land Court), Busia
- Busia ELC 33 of 2019
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (constitutional/statutory basis not expressly stated in the judgment)
Relief refused
#Declaration and registration of the respondent as absolute proprietor of the suit land by way of adverse possession
The deceased's occupation was under a licence arising from a sale agreement with the registered owner; adverse possession had not matured, and a purchaser cannot simultaneously claim adverse possession
Costs
Appeal allowed with costs of this appeal awarded to the appellant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we find that adverse possession had not matured, and to that extent the learned judge fell in error. Consequently, we hold that the appeal is merited and is allowed with costs of this appeal being awarded to the appellant.
the respondent was a licencee who was allowed onto the suit land following the sale agreement he had with Natolio and a purchaser of land one who claims to be a purchaser, cannot, again claim adverse possession
Owing to the nature and extent of orders for adverse possession to wit extinction of right to property, the burden is higher and lays squarely on the person claiming adverse possession to demonstrate that he has met the requirements for grant of an order of adverse possession.
we revisit the appellant’s argument regarding the non-joinder of Natalio or his representative in light of the provisions contained in Article 50(1) of the Constitution of Kenya, and Order 37 rule 7(3) of the Civil Procedure Rules, 2010 and find that indeed the judgment was entered against a party who had not been served, hence not heard.
If by this adverse possession the statute is set running, and it continues to run for twelve years, then the title of the owner is extinguished and the person in possession becomes the owner.
Issues in the judgment
#The judgment describes the deceased inconsistently, calling him 'Geofirey Adams Ogwa' in places and 'Godfrey Adams Ogwa'/'Godfrey Adam Ogwa' in others; the respondent's father's correct name is unclear from the text.
The judgment states the trial court found 'the respondent had not proved his claim and was entitled to be declared as the owner' - an internally contradictory sentence, given the trial court entered judgment in the respondent's favour.
The judgment contains an incomplete sentence or transcription gap regarding the licence determination, skipping from the sale agreement discussion directly into 'that until the license is determined, the occupation cannot be said to be adverse.'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Namadoa v Gina (Suing on Behalf of his Father (DCD)Godfrey Adam Ogwa) (Civil Appeal E108 of 2022) [2025] KECA 479 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal from Busia ELC 33 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/479/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.