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ELCDismissedEnvironment and Land Appeal E019 of 2022· [2023] KEELC 20983 (KLR)

Achieng v Odongo & 2 others

Environment and Land Court at Siaya
26 October 2023
AKA. Y. Koross
3,387 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A registered owner who never occupies her land can lose it to long-term occupants through adverse possession, even after winning registration.

What this practically means

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Executive summary

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The appellant, registered proprietor of North Sakwa/Nyawita/1662 since 2 June 1995, sued the respondents for trespass, eviction and injunction in Bondo PM ELC Case No. E36 of 2021. The respondents counterclaimed that they had occupied the land openly, peacefully and continuously since 1965 and had acquired title by adverse possession, alleging the previous owner held the land in trust for them. On 9 June 2022 the trial magistrate dismissed the appellant's suit, upheld the counterclaim, and ordered registration of the suit property in the respondents' names. The appellant appealed on four consolidated grounds: reliance on uncorroborated evidence, misapprehension of the law, bias, and issuing orders not sought. Koross J applied the settled standard that a first appellate court will not interfere with the trial court's discretion absent misdirection or failure to consider relevant matters. The court found the respondents' occupation corroborated by the area chief's testimony and photographs, and noted the appellant's own admission that she had never occupied the land since 1995; her claim of taking possession in 1995 was disregarded as an attempt to mislead the court. The court held adverse possession is an overriding interest under Section 28(h) of the Land Registration Act, founded in Sections 7, 13 and 38 of the Limitation of Actions Act, and that the respondents had properly proceeded under Section 38 rather than challenging title under Section 26. Allegations of bias and of orders outside the pleadings were rejected. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the respondents' evidence was uncorroborated and whether they proved adverse possession

Holding

The ground failed; the respondents' testimony was corroborated by DW3 (the area chief), photographs of houses and mature trees, and the appellant herself admitted she had never occupied the land since 1995

Reasoning

Both parties bore the burden of proving their respective cases on a balance of probabilities under Sections 107, 108, 109 and 110 of the Evidence Act. The appellant adduced no evidence to rebut the respondents' claim of over 55 years of open, peaceful and continuous occupation; by her own testimony she had never occupied the suit property since 1995. The trial court, having seen and heard the witnesses, could not be faulted.

p. 5
02

Whether the trial court misapprehended the law on sanctity of title versus adverse possession

Holding

The trial court did not misapprehend the law; the respondents invoked Section 38 of the Limitation of Actions Act, not a challenge to title under Section 26 of the Land Registration Act

Reasoning

Section 28(h) of the Land Registration Act recognises adverse possession as an overriding interest over registered land. The respondents did not challenge the appellant's title on grounds of fraud or misrepresentation under Section 26; they moved the court under Section 38 of the Limitation of Actions Act seeking registration as proprietors, which the trial court correctly applied.

p. 6
03

Whether the trial court was biased or descended into the arena

Holding

The trial court was not biased; it was empowered to seek clarification under Section 173(1) of the Evidence Act, and the appellant's counsel consented to the respondents proceeding without witness statements

Reasoning

The appellant did not substantiate the allegations of bias. The respondents' proceeding without witness statements was at the appellant's counsel's own instance, and counsel had the opportunity to cross-examine. The trial court's questions to PW1 and PW2 were permitted clarifications under Section 173(1) of the Evidence Act. Failure to apply the appellant's submissions was not fatal since submissions are merely persuasive tools.

p. 7
04

Whether the trial court issued orders not sought by the parties

Holding

The ground failed; all orders granted emanated from the counterclaim pleadings

Reasoning

Parties are bound by their pleadings. After dismissing the appellant's case and upholding the respondents' counterclaim, the trial court issued orders that had been sought in the counterclaim, including registration of the suit property in the respondents' names. None of the orders were 'plucked from the air'.

p. 7

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by the trial court unless the decision was clearly wrong due to misdirection, failure to consider relevant matters, consideration of irrelevant matters, or clear abuse of discretion
  • Adverse possession is recognised as an overriding interest under Section 28(h) of the Land Registration Act and is founded in Sections 7, 13 and 38 of the Limitation of Actions Act
  • Submissions cannot take the place of evidence; a trial court's failure to apply a party's submissions is not fatal where it evaluated the evidence tendered
  • Time for adverse possession runs from the date of first registration of title where the proprietor has never been in occupation

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Evidence ActSections 107(1), 107(2), 108, 109, 110, 173(1)
  • Land Registration ActSections 24(a), 26(a) and (b), 28(h)
  • Limitation of Actions ActSections 7, 13(1) and (2), 17, 38(1) and (2)
  • Constitution of KenyaArticle 40(6)

Cases cited (7)

  • Esther Ndegi Njiru & Another v. Leonard Gatei
    (2014) eKLR

    Sanctity of title is not absolute; Article 40(6) removes protection of unlawfully acquired title

  • Mwanasokoni v Kenya Bus Services Limited
    [1985] eKLR

    First appellate court has power to examine and re-evaluate evidence though will not lightly differ from findings of fact

  • Hellen Wangari Wangechi v Carumera Muthoni Gathua
    [2015] eKLR

    Burden and standard of proof; cited Mativo J's approval of Rajah JA and Lord Denning

  • Britestone Pte Ltd vs Smith & Associates Far East Ltd
    {2007} 4 SLR (R} 855

    Court's decision depends on whether the party satisfied the particular burden and standard of proof

  • Miller vs Minister of Pensions
    {1947} 2ALL ER 372

    Standard of proof on a balance of probabilities - reasonable degree of probability

  • Chevron (K) Ltd vs. Harrison Charo Wa Shutu
    [2016] eKLR

    Time for adverse possession calculated from first registration of title

  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR

    Submissions cannot take the place of evidence

On appeal from
Principal Magistrate's Court at Bondo
Bondo PM ELC Case No. E36 of 2021
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's court in environment and land matters

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Achieng v Odongo & 2 others", Case Analysis (2023). Environment and Land Appeal E019 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20983/eng@2023-10-26

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