Ayore v Kivuva (Civil Appeal E021 of 2023) [2025] KEELC 7889 (KLR)

Environment and Land Court

4 November 2025

EME. K. Makori

1,140 words in judgment

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The bottom line

A Kenyan court confirmed that when two people buy the same unregistered land, whoever bought first wins — the later buyer must verify no prior claims exist.

What this practically means

Executive summary

This is a first appeal to the Environment and Land Court at Malindi against the judgment of Hon. J.M. Kituku in Kilifi CMCC No. 279 of 2015, in which the trial magistrate allowed the plaintiff's claim and granted a permanent injunction against the defendant, giving him 60 days to remove his structures from the suit plot. The appellant, who purchased a 50 by 100-foot plot on December 19, 2013 for Kshs. 380,000 from Simon Yego Mateb and took possession by erecting a perimeter wall, challenged the sale agreement's validity, the committee's verdict, and the grant of the injunction, contending the respondent had no superior title and no possession. The respondent testified she bought Plot No. 55, Kiwandani in February 2005 for Kshs. 10,000 from Solomon Titio Kamau, took possession by planting crops from 2005 to 2023, and was found by the Kiwandani Management Committee to be the bona fide purchaser. The appeal was canvassed by written submissions, though the court noted it had not seen the appellant's submissions. Setting out the standard appellate duty from Peters v Sunday Post and Selle v Associated Motor Boat Co., E.K. Makori J reaffirmed that the trial magistrate correctly identified the dispute as one between competing purchasers of unregistered land, applied the first-in-time principle (also drawn from Joseph Kiprotich Bor v Tabutany Chepkoech Chebusit), and held the respondent's 2005 interest prevailed over the appellant's 2013 acquisition, the latter bearing the duty to verify prior claims. The appeal was dismissed with costs.

Key legal issues

Scope of the first appellate court's duty on facts

Holding

The court on appeal must reassess and independently evaluate the evidence but exercise caution in disturbing factual findings.

Reasoning

Relying on Peters v Sunday Post and Selle v Associated Motor Boat Co., the court held that the jurisdiction to review evidence should be exercised with caution; an appeal is by way of retrial, requiring the appellate court to reconsider the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses.

p. 2

Competing claims to unregistered land between two purchasers

Holding

Where two purchasers claim the same unregistered land, the first interest in time prevails; the later purchaser must verify the absence of prior claims.

Reasoning

Neither party called their vendor as a witness. The respondent acquired her interest in 2005 and took possession, planting crops until 2023, while the appellant acquired his in 2013. The trial magistrate correctly applied the first-in-time principle, and the Kiwandani Management Committee had resolved the respondent was the bona fide purchaser. The appellant, acquiring later, bore the duty to verify no prior claim existed.

p. 2

Legal principles established

An appellate court may reassess and independently evaluate evidence from the lower court, but must make due allowance for not having seen or heard the witnesses.
Where there are two competing interests of purchasers over unregistered land, the first in time prevails.
A later purchaser of land bears the duty of verifying that no other person claims an earlier interest in the property.

Court orders

1.The appellant's appeal is dismissed
2.Costs of the appeal awarded to the respondent

Authorities

Cases cited (3)

Peters v Sunday Post Limited
[1958] EA 424
Selle & Another v Associated Motor Boat Co. Ltd & Others
[1968] EA 123
Joseph Kiprotich Bor v Tabutany Chepkoech Chebusit
[2022] KEELC 1440 (KLR)

On appeal from: Chief Magistrate's Court, Kilifi; Kilifi CMCC No. 279 of 2015
Jurisdiction invoked: First appellate jurisdiction over the Chief Magistrate's Court judgment in Kilifi CMCC No. 279 of 2015

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ayore v Kivuva (Civil Appeal E021 of 2023) [2025] KEELC 7889 (KLR)", Case Analysis (2025). Kilifi CMCC No. 279 of 2015 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7889/eng@2025-11-04

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