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Court of AppealDismissedCivil Appeal (Mombasa) - not stated in judgment· [2025] KECA 912 (KLR)

Katana Charo Kombe & 1 other v Abdullah Mangi Mohammed & 1 other

Court of Appeal of Kenya
23 May 2025
4,303 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that pleading adverse possession in Kenya is not enough—you must prove 12 years of open, exclusive occupation with actual evidence.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Mombasa against the judgment of the Environment and Land Court at Malindi (Odeny, J.) delivered on 16th March 2022, which entered judgment for the respondents, trustees of Masjid Jibran Mtwapa, in a dispute over subdivision Number 915 (Original No. 539/135) CR No. 70802 in Kilifi County. The respondents claimed ownership and a permanent injunction, alleging encroachment by the appellants; a county surveyor's report confirmed the beacons were correctly established. The appellants, who did not file a counterclaim, pleaded a defence of adverse possession and, for the first time on appeal, contended that the respondents' suit was statute barred. The Court framed two issues: whether a limitation-based defence qualifies as a claim for adverse possession, and whether the trial court erred in characterising the dispute as a boundary dispute. The Court held that a claim for adverse possession must be proved by evidence establishing open, exclusive, non-permissive occupation for at least 12 years; mere pleading that a boundary stood for 40 years was insufficient, and the appellants' oral evidence in cross-examination reneged on the claim, describing their structure as an encroachment. The Court further declined to entertain the statute-bar defence, holding that issues not raised before the trial court cannot be entertained on appeal, citing Bandi vs. Dzomo and Dellian Langata. Applying the settled standard that a first appellate court re-evaluates the evidence but will not disturb findings of fact unless they rest on no evidence, a misapprehension of the evidence, or wrong principles, the Court found the appeal devoid of merit. The appeal was dismissed with costs to the respondents, and the ELC judgment was upheld.

Key legal issues

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01

Whether a defence of adverse possession can succeed without supporting evidence merely because it was pleaded

Holding

No. The claimant bears the onus of proving the essential elements of adverse possession by evidence; mere pleading that a boundary has been in place for 40 years does not amount to a claim for adverse possession.

Reasoning

The Court reiterated that for adverse possession the claimant must occupy the land openly, without secrecy, force, licence or permission, with intent to dispossess the owner, for at least 12 years (nec vi, nec clam, nec precario). The appellants did not state the period they lived on the portion claimed or the exact portion. Their oral evidence reneged on the claim, acknowledging that anything of theirs on plot 915 was a mistake and an encroachment.

p. 7
02

Whether the appellants could raise the limitation defence for the first time on appeal

Holding

No. The statute-bar defence was never raised before the trial court, and raising it on appeal is too late, divesting the appellate court of jurisdiction to consider it.

Reasoning

The Court applied its settled jurisprudence that the jurisdiction of an appellate court is confined to issues presented before the trial court. It relied on Bandi vs. Dzomo and Mary Kitsao Ngowa v Krystalline Limited, and on the discretion (to be exercised sparingly) to admit new points on appeal, which requires that full justice be done, that the evidence be complete, and that no new disputes of fact arise.

p. 7
03

Whether the trial court erred in treating the matter as a boundary dispute

Holding

No. The respondents' claim was from the outset one of a boundary dispute, confirmed by a surveyor's report that all beacons were found or re-established in accordance with the Survey Act and Regulations.

Reasoning

The certificate of title showed the suit property registered in the respondents' names, and the boundary report dated 24th June 2018 confirmed the beacons were properly placed, with the stalls having encroached onto the suit property. The appellants' own cross-examination conceded there was no claim to plot 915. The first appellate court found no basis to disturb the trial court's characterisation or findings.

p. 7

Legal principles established

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  • A first appellate court must reconsider and re-evaluate the entire evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses.
  • An appellate court will not interfere with a trial court's findings of fact unless based on no evidence, on a misapprehension of the evidence, or where the judge acted on wrong principles.
  • A claim for adverse possession requires proof of open, exclusive, non-permissive occupation for the statutory period of 12 years with intent to dispossess the owner; mere pleading is insufficient.
  • An appellate court cannot deal with issues not raised or canvassed before the court of first instance.
  • A party will not ordinarily be allowed to raise on appeal a case totally inconsistent with that raised at trial.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellants to pay costs to the respondents
  3. 3.The Judgment of the Environment and Land Court at Malindi (Odeny, J.) delivered on 16th March 2022 is upheld
On appeal from
Environment and Land Court at Malindi
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules, 2022, rule 31(1)(a); appeal against decision 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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Cite this brief

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Cite this brief

Caselaw, "Katana Charo Kombe & 1 other v Abdullah Mangi Mohammed & 1 other", Case Analysis (2025). Civil Appeal (Mombasa) - not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/912/eng@2025-05-23

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