Afubwa & another v Salano (Environment and Land Appeal E011 of 2023) [2025] KEELC 2956 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Pleading of adverse possession
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
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.
Proof of adverse possession by a purchaser
The claim failed because the Respondent did not prove full payment of the purchase price, the point at which time begins to run
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.
Appellants' entitlement to vacant possession
Trespass was established and the Appellants, as undisputed registered proprietors, were entitled to vacant possession and a permanent injunction
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.
Legal principles established
#- 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
#- 1.Judgment of the Subordinate Court set aside and replaced with an order dismissing the Respondent's Counterclaim
- 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.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.Each party to bear own costs of the appeal and of the proceedings in the Subordinate Court
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.