Isaiah Mutea M’itunga v Francis Kairetha Ibere Alias Kairethia Ibere & 1 other
The bottom line
#Kenya's Court of Appeal dismissed a land claim because the claimant couldn't prove he owned the land or lived on it openly and continuously for 12 years.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant proved a sale agreement with the 1st respondent as the foundation of his adverse possession claim
The appellant did not prove the alleged purchase; he did not produce the sale agreement, did not call the advocate before whom it was allegedly signed, and gave no particulars of price or completion
The appellant relied on a sale agreement allegedly signed before an advocate in 1984 but never produced it, claiming it burnt. The advocate was not called as a witness, the purchase price, payment and completion terms were never particularised, and his own witnesses contradicted each other on whether they witnessed the sale. The trial Judge, who saw and heard the witnesses, rejected the purchase version in favour of the lease version, and this Court found no basis to interfere.
Whether the appellant was in open, exclusive and uninterrupted possession of the 2 acres for over 12 years
He was not; the accepted evidence was that he leased one acre for five years, came to farm and left, never living on the land
The appellant claimed to have settled, built and fenced the 2 acres since 1984. However, his own witness PW3 testified in cross-examination that the appellant used to come and farm and go away with his workers, and that neither he nor his family lived on the land. The 1st respondent's account of a five-year lease expiring in 1989 was accepted by the trial Judge. On independent review, the Court agreed that possession was never exclusive or adverse.
Whether the trial Judge erred in finding that possession was interrupted in 2010
The appeal failed on the broader ground that adverse possession was never established at all, so no separate finding on interruption was necessary
The Court framed a single issue: whether the Judge erred in holding that the appellant failed to prove entitlement by adverse possession. Having reviewed the evidence, the Court independently agreed with the Judge's findings on the lease and absence of exclusive occupation, rendering the complaint about the 2010 interruption finding academic.
Legal principles established
#- An appeal to the Court of Appeal from the ELC is by way of retrial: the court must reconsider, re-evaluate the evidence and draw its own conclusions, while having regard to the trial court's advantage of seeing and hearing the witnesses
- A registered owner's title is extinguished after 12 years of limitation, and a person in peaceful, continuous and uninterrupted possession without the owner's permission, doing acts inconsistent with the owner's enjoyment of the soil, may apply to be registered as owner
- A claimant of adverse possession must prove open possession without force, without secrecy and without the licence or permission of the owner for twelve years, with intention to dispossess
- Where the claimant is a purchaser under a contract of sale, possession becomes adverse only once the contract is repudiated; where payment is by instalments, adverse possession runs from payment of the last instalment plus 12 years of occupation
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondents
- On appeal from
- Environment and Land Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Environment and Land Court (the judgment does not cite a specific constitutional or statutory provision for jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaiah Mutea M’itunga v Francis Kairetha Ibere Alias Kairethia Ibere & 1 other", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1435/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.