James Maina Muthii v Gathoni Wahome & 2 others

initially a party in the suit, but he passed away during the pendency of the proceedings and was not substituted. The said James Kibugi was not named as a party in the appeal. 4. The 1st respondent told the trial court that she entered the suit property known as LR No. Kiine/ Kiangai/640 in 1965 after she and her late husband bought the land from Kabuchi Rwario, the second respondent herein. The land was reportedly subdivided by James Kibuchi in 1990, after which he sold 1 portion and left the 1st respondent on the other portion registered as LR No. Kiine/Kiangai/1643. She stated that she had constructed three semi-permanent homes for her family and planted several cash crops. During the pendency of the suit, parcel LR No. Kiine/Kiangai/1643 was divided again into parcels Kiine/Kiangai/2345 and 2346 which were sold to the applicant and to the 3rd respondent respectively. 5. Kabuchi Rwario, the 2nd respondent, told the court that he was not the registered owner of the property and that the 1st respondent herein had entered the suit property as intended purchasers along with her husband, failed to pay the purchase price, and then refused to vacate. James Kabuchi was the registered owner but at the time when the 1st respondent entered the property, he was a minor. 6. The ELC in its judgment dated 29th May, 2017 held that the suit against James Kibuchi had abated as he died in March 2009. The court also held that the other parties sued in the matter were not registered owners therefore the claim was unsustainable and was dismissed. Being aggrieved by this decision, the 1st respondent filed Nyeri Civil Appeal No.134 of 2018. 7. Upon considering all the issues on appeal, this Court (W. Karanja, Kimaru & Muchelule, JJA.) delivered a judgment on 25th October 2024, and set aside the judgment by the ELC and substituted it with a finding that the 1st respondent had established her claim of adverse possession. The court held that when the 2nd respondent reached the age of majority, the late James Kibuchi reneged on an agreement to transfer the suit property to the 1st respondent. It was also undisputed that the 1st respondent had been on the land since 1965, and this Court found the appeal to be merited. The registration of the applicant herein and the 3rd respondent as owners of the land was cancelled and the court directed that the 1st respondent be registered as owner of the property. 8. The applicant, who was the 1st respondent in the appeal, now states that there has been a grave miscarriage of justice and there is a legal issue as to whether adverse possession can be made against an individual who is not the registered owner of the property. The applicant also states that there is a question as to when permission becomes adverse and whether adverse possession can crystallize or run against a minor. He also states that stay of execution of the judgment is necessary as the suit property known as LR No. Kiine/Kiangai/2345 is registered to him. The applicant has filed submissions dated 27th November, 2024 in support of the application. 9. The 1st respondent filed a replying affidavit sworn on 20th November, 2024 and submissions dated 11th December, 2024. She states that the dispute relates to private registered land and nothing therein requires constitutional interpretation. She also states that the law on adverse possession is well settled and there is no matter of general public importance and the application does not meet the threshold for the orders sought. The 1st respondent also states that the matter has been in court since 1991 and she should be allowed to enjoy the fruits of her judgment as she is advanced in age. 10. This application was heard on 7th April, 2025 on the court’s virtual platform. Learned counsel Mr. Kahiga appeared for the applicant, while learned counsel Mr. Muchira appeared for the 1st respondent. The other respondents did not participate in the application and did not attend the hearing despite being served a hearing notice on 19th March, 2025. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2143/eng@2025-11-28 2

page 2 of 4

11. 12. We have considered the record of appeal, the application and the submissions on record. In applications such as this, the principles for consideration are well settled by the Supreme Court of Kenya. In Hermanus Phillipus Steyn vs. Giovanni Gnecchi- Ruscone, Sup. Ct. Appl. No. 4 of 2012 [2013] eKLR the Supreme Court pronounced the test applicable in determining whether a matter is of general public importance befitting to be heard by the Court. The Court outlined the governing principles thus: “ i. for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest; ii. where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest; iii. such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination; iv. where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination; v. mere apprehension of miscarriage of justice, a matter most apt for resolution in [other] superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution; vi. the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought; vii. determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.” This Court in Johnson Githaiga Njoroge vs. Daniel Githaiga Mwaniki [2014] eKLR stated: “ …a matter of general public importance warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that; its impact and consequences are substantial, broad- based, transcending the litigation interest of the parties, and bearing upon the public interest. As the categories constituting the public interest are not closed, the burden falls on the intending appellant to demonstrate that the matter in question carries specific elements of real public interest and concern.” 13. It is our considered view that the applicant has not raised any issue that meets the above set criteria to justify grant of leave to file an appeal to the Supreme Court. The legal position and the parameters on adverse possession have been determined repeatedly at the ELC and this Court and jurisprudence is in plenty and precise. There are no issues presently raised that transcend the circumstances of the particular case and there are no issues of general public importance at all. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2143/eng@2025-11-28 3

page 3 of 4

14. Seeing as we have found that the applicant has not raised any novel issue calling for determination by the apex court, we shall not engage in an academic exercise to consider the prayer for stay of execution of judgment. 15. The motion dated 5th November, 2024 fails and is dismissed with costs to the 1st respondent. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER, 2025. S. ole KANTAI ........................ JUDGE OF APPEAL J. LESIIT ........................ JUDGE OF APPEAL ALI- ARONI ........................ JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2143/eng@2025-11-28 4

page 4 of 4