Marwanga v Osaga & 4 others (Environment and Land Appeal 8 of 2023) [2025] KEELC 743 (KLR)
The bottom line
#Kenya's Environment and Land Court restored a landowner's right to evict occupants because they failed to prove 12 years of adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents proved adverse possession
The counterclaim was not proved; the 1st respondent's evidence was contradictory and the 2nd–5th respondents offered no evidence, so the counterclaim was dismissed.
The 1st respondent gave inconsistent evidence about who her husband was, whether she had a co-wife, and when she entered the land. Photographs were not explained and could not prove duration of occupation. The 2nd–5th respondents never testified. Adverse possession requires open, continuous, quiet possession for 12 years proved on a balance of probability, which was not met.
Whether the appellant, as registered proprietor, was entitled to eviction and injunction
Yes; with the counterclaim dismissed, judgment was entered for the appellant as prayed in the plaint.
Under sections 24 and 25 of the Land Registration Act, registration vests absolute ownership and the rights of a proprietor are free from all other interests unless defeated as provided in the Act. The respondents failed to prove the overriding interest of adverse possession, so the appellant's title prevailed and eviction and permanent injunction followed.
Whether the 1st respondent had authority to testify for the other respondents
The court found substance in the argument that she had no authority; the 2nd–5th respondents needed to testify individually.
The respondents were sued individually, not in a representative capacity. Without a written authority appointing the 1st respondent as their representative, the other respondents had to attend court and give evidence. They did not, so no case was made on their behalf.
Legal principles established
#- A first appellate court must re-evaluate and assess the evidence and reach its own conclusions while bearing in mind that the trial court observed the demeanour of the witnesses.
- The burden of displacing the rights of a registered proprietor under sections 24 and 25 of the Land Registration Act lies on the party asserting a competing right, such as adverse possession.
- A respondent who was not sued in a representative capacity and gave no evidence cannot obtain judgment; unadopted witness statements are not evidence.
Court orders
#- 1.The counterclaim of the respondents is dismissed (substituting the trial court's judgment upholding the counterclaim).
- 2.Judgment entered for the appellant as prayed in the amended plaint, being orders of eviction and permanent injunction against the respondents (prayers (a) and (b)).
- 3.No orders made on prayers (c) and (d) relating to police assistance; the appellant at liberty to apply for execution and specify police assistance required.
- 4.Costs of the primary suit, the counterclaim and the appeal awarded to the appellant, payable jointly and/or severally by the respondents.
- On appeal from
- Kehancha Principal Magistrate's Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal under section 78 of the Civil Procedure Act from the Principal Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marwanga v Osaga & 4 others (Environment and Land Appeal 8 of 2023) [2025] KEELC 743 (KLR)", Case Analysis (2025). Environment and Land Court Appeal at Migori (from Kehancha PM's Court), memorandum of appeal dated 9 September 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/743/eng@2025-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.