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Court of AppealPartially AllowedCivil Appeal at Mombasa (appeal against ELC No. 108 of 2021 [O.S.], Malindi)· [2025] KECA 1036 (KLR)

Kahindi Ngala Mwagandi v Dr Matana Lewa

Court of Appeal of Kenya
5 June 2025
AMA. K. MurgorPNP. NyamweyaGOG. V. Odunga
4,684 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed an adverse possession claim because the land occupier couldn't prove twelve years of continuous, exclusive occupation with credible evidence.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Murgor, Nyamweya and Odunga JJA) dismissed an appeal against the Environment and Land Court at Malindi (Olola J), which had rejected an adverse possession claim over Tezo/Roka/374. The Appellant claimed occupation since 1992 and sought a declaration of ownership and excision of the occupied portion from the Respondent's title. The appeal collapsed on proof: the key 2007 letter from the District Land Adjudication and Settlement Officer was held inadmissible as proof of its contents because its maker was not called and no statutory exception under section 35 of the Evidence Act was established, admission as an exhibit not amounting to proof. Undated, unauthenticated photographs, being electronic records lacking a section 106Bpara 4 certificate, were of limited probative value on the duration of occupation. The Court affirmed that the onus lies on the adverse possessor to prove exclusive possession for twelve years without the owner's consent, and held that the Respondent's 1995 charge of the land to Kenya Commercial Bank constituted acts of control rebutting discontinuance of his possession. However, the Court partially corrected the decision below: it set aside the trial Judge's finding that the Appellant was required to lodge an objection under section 26 of the Land Adjudication Act, holding that adjudication processes were irrelevant to an adverse possession claim, which defeats registered title however acquired. The appeal was otherwise dismissed with each party bearing their own costs of the appeal. The judgment binds lower courts on the distinction between admission and proof of documents, the authentication of photographs, and the irrelevance of adjudication objections to adverse possession claims.

Key legal issues

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01

Proof and admissibility of the 2007 letter

Holding

The letter was inadmissible as proof of its contents because its maker was not called and no basis for the exception was laid

Reasoning

Under section 35 of the Evidence Act both conditions - personal knowledge of the maker and the maker being called as witness - are conjunctive and cumulative. The Appellant did not call the maker nor lay any basis for the statutory exceptions, so the trial Court could not assess the letter's probative value. The trial Judge did not err in holding the letter inadmissible.

p. 7
02

Evidentiary value of photographs

Holding

Unauthenticated, undated photographs have limited probative value on duration and continuity of occupation

Reasoning

Photographs are electronic records requiring a section 106Bpara 4 certificate, which was not produced. The photographs were undated and not shown to relate to the suit property. As static and inert representations, they identify a person, item or place only at the moment taken and cannot prove the twelve years of continuous occupation required for adverse possession.

p. 7
03

Effect of charging the suit property to a bank

Holding

Charging the land met the threshold for acts of control rebutting discontinuance of the owner's possession

Reasoning

A title owner may rebut adverse possession by evidence of retention of physical possession, intermittent acts of control, or positive steps to recover possession. The Court found that the Respondent's 1995 charge to Kenya Commercial Bank constituted such acts of control, so the trial Judge did not err on the legal effect of the charge.

p. 8
04

Relevance of failure to object under section 26 of the Land Adjudication Act

Holding

The trial Judge erred; adjudication objections are irrelevant to an adverse possession claim, which defeats registered title however acquired

Reasoning

The issue in the trial Court was whether the Appellant proved adverse possession despite the allocation of the land to the Respondent. The Land Adjudication Act processes were irrelevant to that question, since adverse possession defeats a registered title however acquired and is maintainable notwithstanding a certificate of title.

p. 8

Legal principles established

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  • A document admitted in evidence as an exhibit is not thereby proved; the maker must be called as a witness (or a statutory exception established) for it to have probative value
  • A claim of adverse possession defeats a registered title however acquired, and is maintainable notwithstanding that a certificate of title has been issued
  • The onus remains on the person claiming adverse possession to prove complete and exclusive physical possession and control for the requisite twelve years without the consent of the true owner
  • Photographs are electronic records requiring a certificate under section 106Bpara 4 of the Evidence Act, and even when authenticated have limited probative value on duration of occupation

Court orders

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  1. 1.Setting aside the finding of the trial Court that the Appellant was required to raise an objection under section 26 of the Land Adjudication Act
  2. 2.Dismissal of the appeal
  3. 3.Each party shall meet their own costs of the appeal
On appeal from
Environment and Land Court at Malindi
ELC No. 108 of 2021 [O.S.]
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over an appeal from the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Kahindi Ngala Mwagandi v Dr Matana Lewa", Case Analysis (2025). Civil Appeal at Mombasa (appeal against ELC No. 108 of 2021 [O.S.], Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1036/eng@2025-06-05

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