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Court of AppealDismissedSecond appeal from Kisumu ELC Appeal No. 38 of 2022· [2025] KECA 1284 (KLR)

Odera v Were (Civil Appeal E041 of 2024) [2025] KECA 1284 (KLR)

Court of Appeal of Kenya
11 July 2025
ASAsike-MakhandiaHOH. A. OmondiLKL. Kimaru
3,214 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal ruled that land bought from someone without a grant of representation over a deceased owner's estate is void, and buyers cannot claim ownership by long occupation.

What this practically means

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Executive summary

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This was a second appeal from the Environment and Land Court at Kisumu (Asati, J.), which had set aside a trial court judgment that had allowed a counterclaim for adverse possession. The dispute concerned Kisumu/Kasule/3406, registered in the name of Paul Were Ogutu (deceased). The appellant claimed he had purchased half of the land in 2007 from Leonida Achieng Were, a co-wife of the deceased, for Kshs. 200,000, and had occupied and developed the land for over 13 years. The respondent, as administratrix of the estate, sued for eviction, alleging intermeddling. The first appellate court held that at the time of entry the registered owner was deceased, no person had capacity to transact, and time for adverse possession could not run against an unrepresented estate; it dismissed the counterclaim and ordered eviction and a permanent injunction. Before the Court of Appeal, the appellant argued the first appellate court had erred by voiding the sale agreement, an issue not pleaded, and that misdirection on fact is a question of law. The Court, confined to matters of law on second appeal, framed two issues: whether the sale of the deceased's property was void, and whether adverse possession could arise from that agreement. Applying section 45 of the Law of Succession Act, the Court found both the vendor's disposal and the appellant's occupation amounted to intermeddling, rendering the sale illegal, null and void and incapable of conveying any interest. Since the appellant entered as a purchaser with the vendor's permission, his occupation was not hostile or adverse, and the adverse possession claim failed. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the sale by a co-wife before a grant of representation was valid

Holding

The sale was invalid as intermeddling under section 45 of the Law of Succession Act; the vendor lacked capacity and no interest passed.

Reasoning

At the time of the 2007 sale agreement the land remained registered in the name of the deceased and no succession proceedings had been commenced or concluded. The vendor had no grant and thus no capacity to dispose of estate property. The appellant's taking of possession and development of the land also constituted intermeddling, a criminal offence under section 45. The resulting contract was illegal, null and void and conveyed no interest to the purchaser.

p. 5
02

Whether adverse possession could be founded on the void sale agreement

Holding

No. The appellant entered as a purchaser with the vendor's permission, so his occupation was neither hostile nor adverse, and time could not run against a deceased unrepresented estate.

Reasoning

Adverse possession requires possession that is hostile or adverse to the interest of the registered owner. The appellant entered in pursuance of an agreement for sale and with the permission of the vendor, which defeats a claim of adverse possession under settled authority. Moreover, at the time of entry the registered owner was deceased and no person had capacity to transact or against whose title time could run. The claim therefore failed.

p. 6

Legal principles established

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    Court orders

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    1. 1.Appeal dismissed
    2. 2.Costs of the appeal to the respondent

    Authorities

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    Legislation

    • Law of Succession ActSection 45
    • Law of Succession ActSections 81, 82, 83 and 84
    • Limitation of Actions ActSection 7
    • Limitation of Actions ActSection 13
    • Limitation of Actions ActSection 38
    • Limitation of Actions ActSections 9, 10, 11 and 12

    Cases cited (7)

    • Samuel Miki Waweru vs. Jane Njeri Richu
      Civil Appeal 122 of 2001 / (2007) eKLR
    • Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others
      [2014] eKLR
    • Lucy Wairimu Gichuhi & 2 Others vs. Regina Wanjiru Mwago & Another
      Nyeri Civil Appeal No. 66 of 2019
    • Kenya Breweries Ltd vs. Godfrey Odoyo
      [2010] 1 KLR 176
    • Stephen Muriungi and Another vs. Republic
      [1982-88] 1 KAR 360
    • In re Estate of M'Ngarithi M'Miriti
      [2017] eKLR
    • Ngugi vs. Kimunio (Environment & Land Case E006 of 2023)
      [2024] KEELC 1518 (KLR) (20 March 2024)
    On appeal from
    Environment and Land Court at Kisumu
    Kisumu ELC Appeal No. 38 of 2022
    Jurisdiction invoked
    Second appeal to the Court of Appeal confined to matters of law

    Key timeline

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    Practical implications

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    Frequently asked questions

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    Later judgments citing this (7)

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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, "Odera v Were (Civil Appeal E041 of 2024) [2025] KECA 1284 (KLR)", Case Analysis (2025). Second appeal from Kisumu ELC Appeal No. 38 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1284/eng@2025-07-11

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