M’Riria & 5 others v Muthomi (Civil Appeal 253 of 2019) [2025] KECA 951 (KLR)
The bottom line
#The Court of Appeal dismissed brothers' claim to own land through long occupation because they could not prove exactly which land they had occupied exclusively for 12 years.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, based on the evidence adduced before the trial court, the learned Judge erred in finding that the appellants had failed to prove that they were entitled to the suit land by way of adverse possession
- 2.Whether the learned Judge erred in finding that the respondent proved that the appellants had trespassed onto his land
Key legal issues
#Whether the trial Judge erred in rejecting the appellants' claim of adverse possession
No error. The appellants did not prove exclusive adverse possession with animus possidendi and could not identify the 0.3 acres claimed; the site visit showed partial and occasional occupation and disuse.
The Court restated the ingredients of adverse possession from Wambugu v Njuguna, Samuel Kihamba v Mary Mbaisi and other authorities, including nec vi, nec clam, nec precario and animus possidendi. DW1 admitted the 0.3 acre land was part of 2.5 acres he needed to 'check out'. The site visit report described a stand-alone house about 5 years old, neglected sugarcane, and partial, occasional occupation. The Court held the evidence must be watertight to extinguish a registered owner's title, and the evidence here was shaky and unsatisfactory.
Whether the running of time for adverse possession is interrupted by a change of registered ownership
Time is not interrupted by a change of ownership; adverse possession runs against the land, and a purchaser takes subject to an accrued overriding interest. However, nothing turned on this point in this case.
The Court disagreed with the trial Judge's statement that the statutory period had not matured simply because the respondent became registered owner in 2005 and suit was filed in 2011, relying on Maweu v Liu Ranching and Githu v Ndeete, which held that mere change of ownership does not interrupt adverse possession and that such rights are overriding interests binding the new owner. Nevertheless, the Court found that nothing turned on this point because the appellants' occupation never met the threshold of adverse possession in the first place.
Whether the respondent proved trespass
Yes. Having failed in their adverse possession claim, the appellants became trespassers on land of which the respondent was the absolute registered owner.
The respondent held a certificate of title protected by sections 24, 25 and 26 of the repealed Registered Land Act (now section 26 of the Land Registration Act). The appellants, by pleading adverse possession, implicitly acknowledged possession of the land, but their possession did not meet the adverse possession threshold. Their entry was around 2011, consistent with the site visit report showing a recently built, disused house. The respondent was therefore entitled to the protection of the law from trespassers and to the injunction and eviction orders granted by the trial court.
Legal principles established
#- The ingredients of adverse possession are ownership of the land by the person against whom the claim is made; open, continuous and exclusive possession by the claimant for at least 12 years; and assertion of a right inconsistent with the rights of the owner - all must be proved.
- A claimant must identify the exact land or portion of land he is occupying adversely; where the claimant occupies neighbouring land and cannot tell whether the part occupied is the claimant's own or the suit land, the claim fails.
- Adverse possession runs against the land rather than the owner; a change of ownership of land occupied by another under adverse possession does not interrupt that possession, and a purchaser takes subject to an accrued overriding interest.
- The evidence extinguishing a registered owner's title must be watertight; allegations without tangible evidence will not sustain a finding of adverse possession.
Court orders
#- 1.The appeal was dismissed
- 2.The appellants to meet the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (High Court)
- ELC Case No. 187 of 2011 (with consolidated OS No. 18 of 2012)
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction (statutory appeal from the Environment and Land Court); specific provision not stated in the judgment.
Relief refused
#Declaration that the appellants were entitled to the suit land by adverse possession, rectification of the register and transfer of the land
The appellants failed to prove open, continuous and exclusive possession for 12 years with animus possidendi, and could not identify with certainty the portion of land claimed
Appellants' implicit resistance to the respondent's trespass claim and eviction
Having failed in their adverse possession claim, the appellants became trespassers; the respondent was entitled to absolute ownership
Costs
The appeal was dismissed with costs; the appellants were ordered to meet the costs.
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.
From the above decisions, the ingredients of adverse possession are: ownership of the land by the person against the claim is made; open, continuous and exclusive possession of the land by the claimant for at least 12 years; assertion of right by the dispossessor which must be inconsistent with the rights of the owner. All these ingredients must be proved and where the claimant fails to prove any one of them, the claim to land, based on adverse possession, must fail.
In order to extinguish a registered owner’s title to land, the evidence must be watertight as regards the ingredients to be proved before such allegations will be upheld.
Regarding the period of possession, it is important to note that adverse possession runs against the land rather than the owner.
We find no merit in this appeal, which we hereby dismiss with costs.
Issues in the judgment
#The judgment spells the respondent's counsel's authority inconsistently: 'Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR' at paragraph 17 and 'Mtana Lewa v Kahindi Ngala Mwamgandi [2005] eKLR' at paragraph 34.
Wambugu v Njuguna is cited with different citation numbers in the same judgment ([1983] KLR 172 in the respondent's submissions; [1983] KLR 171 in the court's own citation).
The names of the parties do not appear anywhere in the provided judgment text; the parties are referred to only as 'the appellants' and 'the respondent'.
The site visit is described in the judgment as consented to on 29th May 2025 but the report is said to record that the visit took place on 17th October 2018 - dates that appear internally inconsistent.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njoka v Irubia & 4 others (Civil Appeal 26 of 2019) [2026] KECA 1469 (KLR)[2026] KECA 1469 (KLR)24 Jul 2026applied
- Ndung’u v Mungai (Environment and Land Appeal E044 of 2024) [2026] KEELC 4628 (KLR)[2026] KEELC 4628 (KLR)21 Jul 2026
- Tokali & 9 others v Komis & another (Enviromental and Land Originating Summons 293 of 2016) [2026] KEELC 248 (KLR)[2026] KEELC 248 (KLR)27 Jan 2026applied
Cite this brief
#Cite this brief
Caselaw, "M’Riria & 5 others v Muthomi (Civil Appeal 253 of 2019) [2025] KECA 951 (KLR)", Case Analysis (2025). Civil Appeal (Nyeri) - number not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/951/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.