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ELCPartially AllowedNot stated in the extract· [2025] KEELC 2956 (KLR)

Afubwa & another v Salano (Environment and Land Appeal E011 of 2023) [2025] KEELC 2956 (KLR)

Environment and Land Court
27 March 2025
3,696 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that living on land you agreed to buy does not become ownership by adverse possession unless you prove you fully paid for it.

What this practically means

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Executive summary

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The Appellants, registered proprietors of Butsotso/Shikoti/20833 since 19th January 2021 (following subdivision and succession), sued the Respondent for trespass, eviction, injunction and mesne profits in the Subordinate Court at Kakamega. The Respondent counterclaimed, alleging he had bought one acre in 1997 under a sale agreement, occupied it openly for 24 years, and that the Appellants held the land in trust for him. The trial court (Hon. J. R. Ndururi, PM) dismissed the Appellants' claim, found adverse possession established, declared a trust, and ordered transfer to the Respondent, with each party bearing own costs. On first appeal, D. O. Ohungo, J, re-evaluated the evidence. The court held that although the Respondent had not specifically pleaded adverse possession, the claim could be entertained in the interest of justice as the issue was canvassed at trial and no party was ambushed. Critically, possession under a sale agreement is permissive, and time for adverse possession runs only from full payment of the purchase price. The Respondent produced no evidence of paying the outstanding KShs 32,000 balance; his seller denied receiving payment and his witness attested only to the first instalment. The trial Magistrate erred in finding adverse possession proved. The appeal was allowed, the trial judgment set aside, the counterclaim dismissed, and judgment entered for the Appellants: the Respondent was ordered to vacate within 120 days, failing which eviction could follow, and a permanent injunction issued. Mesne profits failed for want of pleading and proof. Each party was ordered to bear own costs in both courts.

Key legal issues

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01

Pleading of adverse possession

Holding

The Respondent did not expressly plead adverse possession or limitation, but the court considered the claim in the interest of justice since the issue was addressed before the trial court

Reasoning

The defence and counterclaim only pleaded trust, not adverse possession; Order 2 Rule 4 requires limitation defences to be specifically pleaded. However, case law de-emphasises form, the Appellants addressed adverse possession in their trial submissions, and there was no ambush, so the claim was entertained.

p. 6
02

Proof of adverse possession by a purchaser

Holding

The claim failed because the Respondent did not prove full payment of the purchase price, the point at which time begins to run

Reasoning

Entry under a sale agreement is permissive; time runs from final payment. The agreement showed KShs 38,000 paid with a KShs 32,000 balance; the Respondent gave no evidence of paying the balance, the alleged seller denied receiving money, and DW2 witnessed only the first instalment. The trial Magistrate erred in ignoring this.

p. 6
03

Appellants' entitlement to vacant possession

Holding

Trespass was established and the Appellants, as undisputed registered proprietors, were entitled to vacant possession and a permanent injunction

Reasoning

The Appellants were registered joint absolute proprietors on 19th January 2021 following subdivision, and the Respondent admitted occupation; his continued presence is trespass, entitling them to the orders sought, save mesne profits which were not pleaded or proved.

p. 6

Legal principles established

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  • Time for adverse possession runs in favour of a purchaser only from the completion of payment of the purchase price
  • Possession alone, however prolonged, is insufficient; the claimant must show possession ceased to be permissive

Court orders

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  1. 1.Judgment of the Subordinate Court set aside and replaced with an order dismissing the Respondent's Counterclaim
  2. 2.Judgment entered for the Appellants that the Respondent vacate Butsotso/Shikoti/20833 within 120 days from delivery of the judgment, in default of which the Appellants may evict him
  3. 3.Permanent injunction restraining the Respondent, his agents, servants, assigns or anybody claiming through him from trespassing, laying claim, cultivating or interfering with Butsotso/Shikoti/20833
  4. 4.Each party to bear own costs of the appeal and of the proceedings in the Subordinate Court

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Law of Succession ActSection 62
  • Land Registration ActSection 24
  • Land Registration ActSection 26 (and 26(1)(a) and (b))
  • Land Registration ActSection 28
  • Limitation of Actions ActSections 4, 7, 13, 17 and 38
  • Civil Procedure Rules, 2010Order 2 Rule 4
  • Constitution of Kenya, 2010Article 40

Cases cited (13)

  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR
  • Samuel Kihamba v Mary Mbaisi
    [2015] eKLR
  • Samuel Miki Waweru v Jane Njeri Richu
    [2004] eKLR
  • Speaker of the County Assembly - Kisii County & 2 others v James Omariba Nyaoga
    [2015] eKLR
  • Kenneth Nyaga Mwige v Austin Kiguta & 2 others
    [2015] eKLR
  • Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Wines & Spirits Kenya Limited & another v George Mwachiru Mwango
    [2018] eKLR
  • Benjamin Kamau Murima & Others vs. Gladys Njeri
    C A No. 213 of 1996
  • Wanyoike Gathure v/s Berverly
    (1965) EA 514
  • Gulam Miriam Noordin v Julius Charo Karisa
    [2015] eKLR
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] KECA 248 (KLR)
  • Public Trustee v Wanduru Ndegwa
    [1984] eKLR
  • Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees
    [2020] eKLR
On appeal from
Subordinate Court at Kakamega
Not stated
Jurisdiction invoked
First appeal from the Subordinate Court to the Environment and Land Court

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, "Afubwa & another v Salano (Environment and Land Appeal E011 of 2023) [2025] KEELC 2956 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2956/eng@2025-03-27

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