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Court of AppealDismissedCivil Appeal E052 of 2022

Kenga & 12 others v Mohamed

Court of Appeal
19 December 2025
AMA. K. MurgorKLK. I. LaibutaGNG. W. Ngenye-Macharia
4,762 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed thirteen land occupants' appeal, confirming that defences not raised at trial are lost and registered titles stand.

What this practically means

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Executive summary

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The appellants, occupying a 24-acre parcel in Malindi, appealed against a judgment of the Environment & Land Court (Odeny, J.) which declared the respondent, the registered purchaser of the land, its absolute and indefeasible proprietor, found the appellants to be trespassers, awarded general damages of Kshs. 300,000, and ordered them to vacate within 45 days and demolish their structures. Before the Court of Appeal (Murgor, Laibuta and Ngenye-Macharia, JJA), the appellants argued that the respondent's suit was time-barred under Section 7 of the Limitation of Actions Act, that their predecessor's title had been extinguished under Section 17, and that adverse possession could be raised as a defence without a counterclaim. The Court framed three issues. First, it held that the limitation defence could not be entertained because it was neither pleaded nor raised at trial, adopting South Nyanza Sugar Co Ltd v Rankai on limitation as a forfeited affirmative defence. Second, it affirmed, following Gulam Mariam Noordin and Chepkwony v Malenya, that adverse possession may be raised by way of defence without a counterclaim. Third, it held the appellants had failed to prove the essential elements of adverse possession: their pleadings and evidence were vague, and the respondent's complaints to the National Land Commission between 2016 and 2017 constituted a definite assertion of ownership interrupting continuity of possession. The Court upheld the respondent's registered title under Sections 24 and 26 of the Land Registration Act, found the appellants to be pure trespassers, dismissed the appeal with costs to the respondent, and affirmed the judgment and decree of the ELC. The judgment binds the Environment & Land Court and subordinate courts on the waiver of limitation defences and the pleading of adverse possession by defence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's suit was time-barred under Section 7 of the Limitation of Actions Act
  2. 2.Whether adverse possession may be validly raised as a defence without a formal counterclaim
  3. 3.Whether the appellants had acquired ownership by adverse possession, and if the learned Judge erred in rejecting that defence

Key legal issues

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01

Whether the limitation defence could be entertained on appeal

Holding

No - the defence was waived by failure to plead or raise it at trial.

Reasoning

The Court found the issue of limitation was never pleaded in the defence, raised as a preliminary objection, or canvassed at trial. Relying on South Nyanza Sugar Co Ltd v Rankai, it held that limitation is an affirmative defence forfeited if not raised at trial, and an adversary cannot be expected to respond to such factual claims for the first time on appeal.

p. 6
02

Whether adverse possession can be raised without a counterclaim

Holding

Yes - a defence pleading suffices; a counterclaim is only needed where registration as proprietor is sought.

Reasoning

Following Gulam Mariam Noordin v Julius Charo Karisa and Chepkwony v Malenya, the Court affirmed that a plea of adverse possession may properly be raised in a defence without an originating summons or counterclaim; Order 37 Rule 7 requires originating summons only where a party seeks registration as proprietor by adverse possession.

03

Whether the appellants proved adverse possession

Holding

No - elements not proved and possession was interrupted by the respondent's complaints to the Commission.

Reasoning

The appellants gave only vague, unsupported claims of occupation since 2000, without proof of precise date of entry, exclusive open possession known to the owner, or twelve years' uninterrupted occupation. The respondent's complaints to the National Land Commission between 2016 and 2017 constituted a definite assertion of ownership interrupting continuity of possession.

Legal principles established

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  • The statute of limitations is an affirmative defence that must be raised at trial; it cannot be raised for the first time on appeal.
  • Adverse possession may be validly raised as a defence to an action for recovery of land without a counterclaim, provided it is specifically pleaded and supported by credible evidence.
  • A registered owner's title under the Land Registration Act remains absolute and indefeasible absent proof of fraud, misrepresentation or illegality.

Court orders

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  1. 1.Appeal dismissed with costs to the Respondent
  2. 2.Judgment and Decree of the ELC at Malindi (M.A. Odeny, J.) delivered on 16th November 2022 upheld

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AM
majority
KL
majority
GN
majority
On appeal from
Environment & Land Court at Malindi
E.L.C. Case No. 41 of 2018
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction

Relief refused

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Setting aside the trial court's judgment on the ground that the suit was time-barred

Limitation was neither pleaded nor raised at trial and cannot be raised for the first time on appeal

p. 6

Declaration of ownership by adverse possession

Essential elements of adverse possession not pleaded or proved; occupation interrupted by complaints to the Commission

p. 8

Costs

The appeal is dismissed with costs to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In sum, the appeal is without merit and is hereby dismissed with costs to the Respondent. We uphold the Judgment and Decree of the ELC at Malindi (M.A. Odeny, J.) delivered on 16th November 2022. It is so ordered.
p. 9Final orders - dismissal and affirmation of the trial judgment
It is not preserved as a defence if it is not raised during trial and cannot be raised for the first time on appeal.
p. 6Limitation as an affirmative defence waived if not raised at trial
The law is now settled that a party may validly raise adverse possession as a defence to an action for recovery or eviction, provided that the plea is specifically pleaded and supported by credible evidence.
p. 7Adverse possession by way of defence
Such formal complaints and official intervention constituted a definite assertion of ownership and interruption of the Appellants' possession.
Interruption of adverse possession by official complaints

Issues in the judgment

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minor

Delivery venue stated as Mombasa in the closing while the cause heading says the Court sits at Malindi

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kenga & 12 others v Mohamed", Case Analysis (2025). Civil Appeal E052 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2219/eng@2025-12-19

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