Zephan Kareithi and Company Limited & 1 other v Jack Kaguo Githae & 2 others
The bottom line
#Kenya's Court of Appeal ruled a man who occupied family land under a licence could not claim it by adverse possession, and must vacate within 60 days.
What this practically means
#Executive summary
#Key legal issues
#Ingredients of adverse possession
The claimant must prove ownership by the person against whom the claim is made; open, continuous and exclusive possession for at least 12 years; and assertion of a right inconsistent with the owner's rights. Failure to prove any one ingredient defeats the claim.
Drawing on Wambugu v Njuguna and Mbira v Gachuhi, the court distilled the elements of adverse possession. It stressed that merely counting years of occupation is insufficient; there must be an adverse incident in the possession present from the time the claimant takes possession, evidenced by steps or actions asserting rights inconsistent with the title of the valid owner.
Permissive possession and when time begins to run
Where entry was under a licence, possession only becomes adverse upon determination of the licence; occupation with permission and adverse possession cannot co-exist.
The only evidence was the 2nd appellant's testimony that the 1st respondent entered as a licensee under an informal lease based on trust. Since his claim was dismissed for want of prosecution, he led no evidence of when the licence ended. Without such evidence there was no basis for finding possession adverse; mere abandonment or non-use by the owner does not establish adverse possession.
Adverse possession against Government land
By section 41(a)(i) of the Limitation of Actions Act, adverse possession cannot run against Government land; if the appellants' lease expired, the land reverted to Government and the claim collapsed.
The 1st respondent contended the lease expired on 1st January 1994. If so, the land reverted to the Government, and section 41(a)(i) bars acquisition of title by adverse possession to Government land or land otherwise enjoyed by the Government, defeating the claim entirely.
Judgment in favour of a plaintiff whose suit stands dismissed
A court cannot hand a favourable judgment to a plaintiff on a suit dismissed for want of prosecution.
Relying on Abdul Rehman v R H Gudka by parity of reasoning, the court held that the trial judge's finding that the 1st respondent acquired the property by adverse possession was untenable because his suit had been dismissed; no declaration may issue in a plaintiff's favour absent a counterclaim or a live suit.
Legal principles established
#- A declaration ought not to be made in favour of a plaintiff where the suit has been dismissed, unless it is merely the negative of a declaration claimed in the defence and counterclaim
- A party may not, without leave, support the decision of the superior court on any ground not relied on by that court except by notice under rule 96
- Where a claimant's entry onto land was as a licensee, there must be evidence of the point at which the licence was terminated or lapsed and possession became adverse
Court orders
#- 1.Appeal allowed
- 2.Judgment in Nyeri ELC Case No. 38 of 2014 delivered on 8th February 2019 set aside and substituted with judgment in favour of the appellants
- 3.Appellants' counterclaim allowed
- 4.1st respondent to give vacant possession of LR. No. Aguthi/Gatitu/667/101, Ruringu Town within 60 days, failing which the appellants may evict him
- 5.Costs of the appeal awarded to the appellants, borne by the 1st respondent
- On appeal from
- Environment and Land Court, Nyeri
- Nyeri ELC Case No. 38 of 2014
- Jurisdiction invoked
- First appeal under the Court of Appeal Rules (appellate jurisdiction over the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zephan Kareithi and Company Limited & 1 other v Jack Kaguo Githae & 2 others", Case Analysis (2025). Civil Appeal No. 208 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/963/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.