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ELCDismissedNot stated in the judgment text (Memorandum of Appeal filed 18th January 2024)· [2025] KEELC 6588 (KLR)

Abdulrahim (Suing on Behalf of the Estate of Habiba Sheikh Abdirahim - Deceased) v Ali & another (Environment and Land Appeal 4 of 2024) [2025] KEELC 6588 (KLR)

Environment and Land Court
18 September 2025
4,437 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a landowner's appeal because her transfer document never identified the plot she claimed, while also confirming only the High Court can grant adverse possession.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Isiolo against the judgment of Hon. M.S Kimani, PM delivered on 21st December 2023, which dismissed the Appellant's claim to Plot No. 2067 Gurmesa Area and allowed the 1st Respondent's counterclaim declaring him owner of Plot No. 5015 Gurmesa Area. The Appellant, acting in person after her counsel ceased acting, adopted the trial court record without filing submissions; the Respondents filed written submissions. The court identified two issues: whether the Appellant proved ownership of Plot 2067 and whether the 1st Respondent proved ownership of Plot 5015. Applying the settled jurisdiction of a first appellate court to re-evaluate the entire evidence, and the burden-of-proof principles in sections 107, 108 and 109 of the Evidence Act as explained in James Muniu Mucheru and Gwer v KEMRI, the court held that the Memorandum of Transfer relied on by the Appellant left the plot details blank and did not identify Plot 2067, so she failed to discharge the burden of proof. Conversely, the 1st Respondent produced uncontroverted evidence of allocation, registration, possession and development of Plot 5015, corroborated by the area chief who placed Plot 5015 in Gurmesa II and Plot 2067 in Gurmesa III. The court nonetheless found the trial magistrate's alternative finding of adverse possession misconceived, since no party pleaded adverse possession and subordinate courts lack jurisdiction to declare title by adverse possession. The appeal was dismissed, the trial judgment affirmed save for the adverse possession limb which was varied, with costs of the appeal awarded to the Respondents.

Key legal issues

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01

Whether the Appellant proved ownership of Plot No. 2067 Gurmesa Area

Holding

The Appellant failed to prove ownership; the Memorandum of Transfer relied on left the plot details blank and did not identify the plot number or measurements.

Reasoning

The Appellant bore the statutory burden under sections 107 and 108 of the Evidence Act to prove that Plot 2067 belonged to and was registered in the name of Habiba Sheikh Abdirahim and that the plot occupied by the 1st Respondent was one and the same. The transfer document was defective, and the Appellant conceded an unresolved council dispute over the same issue. The appeal against the dismissal was therefore misconceived.

p. 7
02

Whether the 1st Respondent proved ownership of Plot No. 5015 Gurmesa Area

Holding

The 1st Respondent proved ownership, possession and development of Plot 5015, and the trial magistrate's finding was correct.

Reasoning

The 1st Respondent tendered documentary evidence of allocation and registration, adduced uncontroverted evidence of possession and development, and called the area chief (DW3) who clarified that Plot 5015 lies in Gurmesa II while Plot 2067 lies in Gurmesa III. The prior council dispute raised by the Appellant's cousin was dismissed. He discharged the burden on him.

p. 8
03

Whether the trial court could award title by adverse possession

Holding

The adverse possession limb of the trial judgment was misconceived: no party pleaded adverse possession, and subordinate courts lack jurisdiction over such claims; it was varied.

Reasoning

The 1st Respondent's case was based on allocation, registration, entry and development, not adverse possession. Under the doctrine of departure, courts are bound by the pleadings and cannot decide unpleaded issues. Additionally, subordinate courts lack jurisdiction to pronounce title by adverse possession, so that limb of the judgment was varied.

p. 8

Legal principles established

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  • A first appellate court must subject the entire evidence to fresh and exhaustive evaluation but should not disturb trial court findings merely because it would have reached a different conclusion; interference is warranted only where findings rest on no evidence, are perverse, founded on misapprehension of the evidence, or on an error of principle.
  • The burden of proof lies on the claimant and remains constant throughout the case.
  • Parties are bound by their pleadings, and the doctrine of departure equally binds judges and magistrates: a court may not determine an issue never pleaded by the parties.
  • Subordinate courts lack jurisdiction to grant a declaration of title by adverse possession.

Court orders

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  1. 1.The Appeal be and is hereby dismissed.
  2. 2.The Judgement of the trial court delivered on 21st December 2023 be and is hereby affirmed, save for the limb that adverted to adverse possession.
  3. 3.Cost of the Appeal be and are hereby awarded to the Respondent.
  4. 4.The cost in terms of (Clause iii) shall be agreed upon and in default be taxed by the Deputy Registrar of the Court.

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 78
  • Evidence Act (Chapter 80, Laws of Kenya)Sections 3, 107, 108, 109

Cases cited (15)

  • Kenya Urban Roads Authority & another v Belgo Holdings Limited
    (Civil Appeal E011 of 2021) [2025] KECA 764 (KLR) (9 May 2025)
  • Peters v Sunday Post Limited
    [1958] EA 424
  • Kenya Ports Authority vs Kuston [Kenya] Limited
    (2009) eKLR
  • Gitobu Imanyara vs The Honourable Attorney General
    (2016) eKLR
  • Doshi v Chemutut & 7 others
    (Civil Appeal E020 of 2023) [2025] KECA 776 (KLR) (9 May 2025)
  • James Muniu Mucheru v National Bank of Kenya Limited
    [2019] KECA 1058
  • CMC Aviation Ltd v. Crusair Ltd (No1)
    [1987] KLR 103
  • Karugi & Another v Kabiya & 3 Others
    [1987] KLR 347
  • Gwer & 5 others v Kenya Medical Research Institute & 3 others
    (Petition 12 of 2019) [2020] KESC 66 (KLR) (Civ) (10 January 2020)
  • Raila Odinga & others v Independent Electoral & Boundaries Commission & others
    Petition No 5 of 2013
  • Odd Jobs vs. Mubia
    [1970] EA 476
  • IEBC vs Stephen Mutinda Mule and Others
    (2014) eKLR
  • Dakianga Distributors Limited vs Kenya Seed Company Limited
    (2015) eKLR
  • Odinga & another v Independent Electoral and Boundaries Commission & 2 others
    (Election Petition 1 of 2017) [2017] KESC 31 (KLR) (28 August 2017)
  • Sugawara v Kiruti & 3 others
    (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) (11 October 2024)
On appeal from
Principal Magistrate's Court (subordinate court, Moyale)
Not stated in the judgment text
Jurisdiction invoked
First appellate jurisdiction under section 78 of the Civil Procedure Act

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, "Abdulrahim (Suing on Behalf of the Estate of Habiba Sheikh Abdirahim - Deceased) v Ali & another (Environment and Land Appeal 4 of 2024) [2025] KEELC 6588 (KLR)", Case Analysis (2025). Not stated in the judgment text (Memorandum of Appeal filed 18th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6588/eng@2025-09-18

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