Hamadi v Safaricom Investments Co-operative Society Limited & another (Civil Appeal E026 of 2023) [2025] KECA 2104 (KLR)
The bottom line
#The Court of Appeal dismissed 150 land claimants' bid for 99 acres in Mombasa, confirming that registered titles stand unless fraud is proven with evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the learned Judge erred in failing to find/appreciate that the appellants' prayers were couched in alternative terms, and in finding that the appellants' entire suit was grounded on adverse possession
- 2.whether the learned Judge erred in finding that the 2nd respondent's father and, subsequently, the 2nd respondent held good title to the suit property
- 3.whether the learned Judge erred in holding that the appellants were not entitled to 99.94 acres of the disputed land by way of adverse possession
Key legal issues
#Whether the appellants' suit was grounded on adverse possession rather than prescription
The suit was one for adverse possession notwithstanding its labelling as a prescription claim, because the appellants sought acquisition of title, ownership and possession, not a mere easement
The court distinguished prescription from adverse possession: prescription confers a non-possessory easement arising from long use of land, while adverse possession confers title through possession. The pleadings sought declarations of ownership, cancellation of titles, sub-division and transfer of 99.94 acres in occupation, and alleged undisturbed occupation until title was obtained - features of adverse possession, not prescription.
Whether the 2nd respondent's father and the 2nd respondent held good title to the suit property
The 2nd respondent's father lawfully acquired the land and the 2nd respondent acquired good title by transmission, which he could pass to the 1st respondent
The 2nd respondent produced the mother title, transfer documents showing purchases of shares in Plot No. 284, letters of administration and a confirmed grant in Succession Cause No. 87 of 2001, and a certificate of title for Plot No. 563. The appellants produced no evidence beyond bare allegations that the documents were fake, and their witnesses were not privy to the transactions. Under section 26 of the Land Registration Act, absent proof of fraud or illegality, the titles stood.
Whether the appellants were entitled to 99.94 acres by way of adverse possession
The appellants failed to prove adverse possession; the appeal on this issue fails
A valuation report dated 3rd November 2015 showed no structures or improvements on the property, corroborating that invasion began in 2016 and structures were erected in 2020. The appellants could not identify with specificity the portions each occupied, their survey sketch lacked context, and their occupation was interrupted by trespass charges in Shanzu Criminal Case No. 112 of 2016, resetting the limitation period.
Legal principles established
#- A claim seeking declaration of ownership, cancellation of titles, subdivision and transfer of occupied land is a claim in adverse possession, not prescription, since prescription confers only a non-possessory easement; a suit alleging long occupation to acquire title bears the hallmarks of adverse possession.
- A registered proprietor's title is indefeasible under section 26 of the Land Registration Act and can only be challenged on proof of fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme; bare allegations of fraud unsupported by evidence will not dislodge title.
- A person claiming adverse possession must prove non-permissive, actual, open, notorious, exclusive and adverse occupation for an uninterrupted period of 12 years (nec vi, nec clam, nec precario) and must specifically identify the portions, sizes and locations of the land claimed.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment and decree of the ELC (E. Makori, J.) delivered on 26th April 2023 is upheld
- 3.The appellants shall bear 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
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment cites its mandate on a first appeal from the High Court per Ng'ati Farmers' Co-Operative Society Ltd v Ledidi & 15 Others)
Relief refused
#The appellants' prayers in the plaint, including cancellation of titles, declarations of ownership of 99.4 acres, subdivision and transfer orders
The appellants failed to prove adverse possession, failed to identify the portions claimed, and produced no evidence to impeach the respondents' titles
The appellants' claim that the 2nd respondent's father did not acquire good title and could not pass title to the 1st respondent
No evidence of fraud or illegality was adduced; the appellants were not privy to the transactions and produced no evidence to support their bare allegations
Costs
The appellants shall bear the costs of the appeal. At first instance the appellants' suit was dismissed with costs and the respondents' counterclaims allowed with costs (now upheld).
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.
Having carefully considered the record of appeal, the grounds on which it is anchored, the rival submissions of learned counsel, the cited authorities and the law, we reach the inescapable conclusion that the appeal fails and is hereby dismissed in its entirety.
Consequently, the judgment and decree of the ELC (E. Makori, J.) delivered on 26th April 2023 is hereby upheld.
The appellants shall bear the costs of the appeal. Orders accordingly.
we find that the appellants’ suit bore all the features of a claim founded on adverse possession artfully disguised as a claim based on prescription.
In the absence of any evidence of fraud or illegality, the respondents established the root of the titles issued to them.
The identification of the land in possession of an adverse possessor is an important and integral part of the process of proving adverse possession.
the appellants’ brief occupation of the suit property was interrupted when some of them were charged with the offence of trespass in Shanzu Criminal Case No. 112 of 2016.
Issues in the judgment
#The judgment twice numbers ground '2' of the memorandum of appeal, so the 12 grounds are misnumbered; the paragraph numbering of the judgment itself is also irregular (e.g. '245' for paragraph 25, two paragraphs numbered '69', and '433' for paragraph 43).
The appellants' claimed acreage is variously stated as 99.4 acres and 99.94 acres within the same judgment without reconciliation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamadi v Safaricom Investments Co-operative Society Limited & another (Civil Appeal E026 of 2023) [2025] KECA 2104 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2104/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.