Issah v Kambu & 18 others (Civil Appeal E050 of 2022) [2026] KECA 329 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that long occupation of land grants no rights unless adverse possession is properly claimed and proven in court.
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 holding that the respondents were entitled to continue occupation of part of the suit property on account of having acquired title by way of adverse possession when adverse possession was never pleaded nor proved.
Key legal issues
#Whether adverse possession could be determined when it was never pleaded
The trial court erred by determining an unpleaded issue; parties are bound by their pleadings and a court cannot pluck issues from the air.
The respondents' defence contained only a denial of the appellant's ownership and no claim to adverse possession in defence or counterclaim. Under the adversarial system, parties control their own narrative in the pleadings and fact finders must not embark on independent fact-finding. The trial court based its finding on the locus in quo observations and a surveyor's report, neither of which constituted pleaded evidence supporting adverse possession. Reliance was placed on Robinson Kiplagat Tuwei, Kenya Ports Authority v Kuston and Baber Alibhai Mawji.
Whether the respondents proved the elements of adverse possession
Even if pleaded, adverse possession was not proved: no particulars of when possession became adverse, no demarcation of the portion claimed, and no specific evidence of each occupant's holding.
Adverse possession is a matter of fact that must be pleaded with proper particulars such as when possession became adverse. The respondents' witness gave a general statement of occupation for 50 to 70 years without specifying how much land each occupied. Citing Kasuve v Mwaani Investments and Daniel Kimani Ruchine, the Court held there must be definite evidence of the area and time of occupation; failure to demarcate the 5.3382 Ha rendered the claim uncertain.
The sanctity and indefeasibility of the appellant's title
The appellant's title, acquired by inheritance, was uncontested and unimpeached; no evidence of fraud, misrepresentation or illegality was produced to challenge it.
The Court found it uncontested that the appellant was the absolute owner holding an indefeasible title, having inherited the estate of Omar Sheikh Bin Athman through succession proceedings confirmed in the High Court. Under Article 40 of the Constitution and sections 24 and 26 of the Land Registration Act, 2012, the certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, illegality or corrupt scheme, none of which was alleged with evidence.
The role of a first appellate court
The Court re-appraised the evidence, drew its own inferences, and made due allowance for not having seen or heard the witnesses.
Guided by rule 31(1)(a) of the Court of Appeal Rules, 2022 and the authorities in Kenya Ports Authority v Kuston, Selle v Associated Motor Boats and Peters v Sunday Post, the Court reassessed the trial evidence and conclusions, concluding that the learned Judge had erred in his interpretation of the elements of adverse possession and in failing to uphold the sanctity of the appellant's title.
Legal principles established
#- A trial court may not grant relief based on facts or issues not pleaded by the parties; adverse possession must be specifically pleaded, with particulars of the area and time of occupation.
- A claim of adverse possession must be raised either in a defence or a counterclaim and must stand on its own feet.
- A court's observations on a locus in quo visit cannot constitute evidence in place of pleadings and adduced evidence.
- An adverse possession claimant must identify with specificity the boundaries and demarcation of the portion claimed, failing which the claim fails through uncertainty.
- A first appellate court's role is to re-appraise the evidence and draw its own inferences of fact while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.Appeal allowed; the Judgment and Decree of Olola, J. dated and delivered on 22nd September 2022 in Malindi ELC No. 8 of 2016 set aside
- 2.Substituted order that the appellant's claim in Malindi ELC No. 8 of 2016 is allowed in its entirety and the appellant is entitled to vacant possession of the entire portion of land known as Portion No. 371, Malindi
- 3.Each party to bear their own costs of the proceedings in the ELC and of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Malindi
- Malindi ELC Case No. 8 of 2016
- Jurisdiction invoked
- First appellate jurisdiction under rule 31(1)(a) of the Court of Appeal Rules, 2022
Relief refused
#Respondents' continued entitlement to 5.3382 Ha of the suit property by adverse possession
Adverse possession was neither pleaded nor proved; the issue was raised suo moto by the trial court and the respondents led no evidence of the specific area occupied
Costs
Each party bears their own costs of the proceedings in the ELC and of this appeal.
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.
We accordingly set aside the Judgment and Decree of Olola, J. dated and delivered on 22nd September 2022 in Malindi ELC No. 8 of 2016, and substitute therefor an order that the appellant’s claim in Malindi ELC No. 8 of 2016 is allowed in its entirety, and the appellant is entitled to vacant possession of the entire portion of land known as Portion No. 371, Malindi.
we hereby order and direct that each party bears their own costs of the proceedings in the ELC and of this appeal.
It is now well settled law that parties are bound by their pleadings, and that the trial court should not go beyond the pleadings before it to give an un-pleaded relief.
We find and hold that the issue of adverse possession was literally plucked from the air, as there was no foundational basis upon which the learned Judge was to make a finding on.
For one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is without secrecy, without force, and without license or permission of the landowner, with the intention to have the land.
Issues in the judgment
#The Certificate of Postal Search relied on as proof of ownership is dated 24th November 2025, which post-dates the filing of the suit (2016) and the trial judgment (2022), yet was said to have been part of the appellant's List of Documents dated 18th September 2017 – an internal inconsistency in the judgment.
The judgment refers to a counterclaim by the respondents in paragraph 29, but the joint statement of defence described earlier contains no counterclaim; the defence is described as a 'joint statement of defence dated 22nd February 2016' praying for dismissal only.
The Certificate of Confirmation of Grant is said to be dated 29th April 2025, yet the pleadings record that the estate was confirmed in Malindi High Court Succession Cause No. 55 of 2007 and the Deed of Assent was executed on 3rd July 2015 – an apparent date inconsistency.
Citation of Kenya Commercial Bank Limited vs. Sheikh Osman Mohammed appears incomplete/truncated in the judgment text: '(2013) 61 (KLR,'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Issah v Kambu & 18 others (Civil Appeal E050 of 2022) [2026] KECA 329 (KLR)", Case Analysis (2026). Malindi Civil Appeal (ELC) – appeal from Malindi ELC Case No. 8 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/329/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.