Mwaniki & another v Warui

3. The respondent’s case was that she came into the original land parcel number Kabare/Nyangati/3158, after the then Kerugoya/Kutus Municipal Council (the Council) subdivided it into plots and allotted them to members of the public. That she was allotted Jua Kali Plot No. 56 in the year 1992. 4. The 2nd appellant swore a replying adavit on 27th November, 2019 on her behalf and on behalf of the 1st appellant. The 2nd appellant conrmed that the suit land (Kabare/Nyangati/6154) arose from the subdivision in December, 2012 of Kabare/Nyangati/3158. The 2nd appellant stated that she had inherited from her deceased husband through Succession in 1995, of land parcel No. Kabare/ Nyangati/3158, after the partitioning of the mother title, land parcel No. Kabare/Nyangati/23. She stated that sometime in November 2018 she gifted the 1st appellant the suit land. 5. It was the 2nd appellant’s case that after bequeathing the 1st appellant the suit land, she led a case before Wanguru SPM ELC Case No. 49 of 2019, seeking eviction of the respondent from the suit land as a trespasser. That the respondent’s reaction was to le Kerugoya ELC Case No. 39 of 2019, seeking a declaration that she had acquired the suit land by adverse possession. The two cases were consolidated by the trial court after the parties entered consent to that eect. 6. The 1st appellant stated that the Council did not, at any time own the suit land or any land out of which the suit land was derived. In addition, the 2nd appellant stated that there had been attempts to claim ownership of the original parcel of land (3158) and the suit land by various parties aliated to the respondent, culminating in various court cases. The 2nd appellant averred that the Council was never an interested party in any of the suits, and neither had it ever commenced any suit against the appellants to claim the land. 7. The 2nd appellant stated that in any event, even if it were the case that the respondent had been allocated the suit land by the Council, which was denied, it ought to have rst acquired it through compulsory acquisition from the appellants. It was the appellants’ case that such acquisition, which they denied, would have gone against the grain of compulsory acquisition to convert private land only to hand it over to private ownership, as opposed to acquisition for purposes of public utility, which is what was recognized in law. 8. The 2nd appellant averred that she had always had the title to the suit land and had severally dealt with the same over the years, and thus the claim by the respondent that they had never taken possession or occupied the suit land was misleading. 9. The 2nd appellant prayed the Court to allow the 1st appellant’s prayers as prayed for in the Plaint in Wang’uru ELC 49 of 2019 dated 22nd July, 2019. 10. In the consolidated case of Wanguru ELC No. 49 of 2019, the 1st appellant via plaint dated 22nd July, 2019 sought judgment against the respondent and an order that the respondent does immediately vacate and give vacant possession of the suit land to the 1st appellant, and in the event the respondent failed to peacefully vacate the suit land, an eviction order do issue; an order directing the OCS Wang’uru police station to ensure compliance with eviction orders; and any other suitable relief that the court deemed t and just to grant. The claim was based on the fact that the 1st appellant was the registered owner of the suit land since November 2018 and that the respondent without color of right and without the 1st appellant’s consent encroached on her land knowing very well that it belonged to the 1st appellant. 11. The matters proceeded by way of viva voce evidence. The respondent’s evidence was a reiteration of her pleadings. Her evidence was that she was working with the County Government of Kirinyaga, having been employed sometime in the year 1982. That she was given the suit land by the County Council https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1707/eng@2026-09-25 2

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of Kirinyaga/Kutus in 1992 (the Council) and that she was not aware that the suit land was private land belonging to other persons, and further, that she was not aware of any disputes over the suit land between the registered owner of the suit land and the Council. The respondent relied on a green card for the suit land, a certicate of ocial search for the same land, photographs, green card for parcel no. Kabare/Nyangati/3158 showing the 2nd appellant was the registered owner, and an application to the Council for a Jua Kali shelter at Kutus which was dated 2nd June, 1992, to support her case. 12. The appellants in their evidence reiterated their case as pleaded in their plaint and the adavits led therein, and we need not rehash the same. Except to add that it was the he 2nd appellant’s evidence that she lived on the suit land and had constructed a house and fenced around it. She stated that although the respondent moved into the suit land and that without her permission, she however had not lived thereon for long as she claimed. 13. In addition, the 1st appellant testied that she is the registered owner of the suit land having, acquired a title deed in November 2018. That the respondent had constructed temporary structures on part of the suit land in 2013, and had rented out to third parties. That the respondent did not live on the land. She added that before going to court, the Council placed a restriction over the suit land in 2014, but which they removed in 2017. She produced a green card of the suit land as proof. The 1st appellant testied that before 2018 she could not bring a case against the respondent since she had no title over the suit land. 14. The Judge identied the issues for determination as whether the respondent should be registered as the proprietor of the suit land The Judge was satised that the respondent had proved that she had lived· in the suit land continuously, openly, exclusively and notoriously without interruption for more than 12 years and that the title to the suit land has extinguished in her favour. The Judge held that the appellants failed to provide credible evidence to rebut the respondent’s long occupation, noting that the photographs and other evidence supported her claim, while the appellants could not establish that they had been in possession of the suit land. Consequently, the Judge declared that the appellants’ title had been extinguished, ordered that the respondent be registered as the lawful proprietor of the suit land, and awarded costs to the respondent. 15. Aggrieved and dissatised with the said judgment the appellants preferred an appeal to this Court. In their memorandum of appeal dated 8th February, 2022, the appellants fault the Judge of falling into error for: making a determination against the weight of evidence; failing to apply the principles of adverse possession; nding that the respondent’s possession of the suit land was founded on her alleged rightful ownership of the same upon allocation by Kerugoya/Kutus Municipality Council, in which case he should have found that adverse possession was not applicable to her case; and basing his ndings of the period the respondent had occupied the suit land on the structures he saw in the photographs produced by the respondent, thereby arriving at an erroneous decision, and failing to fairly evaluate and analyze the evidence adduced in relation to when the alleged adverse possession commenced; in disregarding the evidence adduced and the pleadings in Wang’uru ELC 49 of 2019 which had been consolidated with ELC 39 of 2019; and, in failing to consider the claim in Wang’uru ELC 60 of 2019. 16. The appeal was heard through this Court’s virtual platform. Learned counsel Mr. Magee was present for the appellants, while learned counsel Mr. Makworo was present for the respondent. Both counsel relied on their clients’ respective written submissions with brief oral highlighting of the same. 17. This is a rst appeal, and our mandate as such is well settled. We are enjoined under the law to reappraise the facts and to draw our own inferences and conclusions. The predecessor of this Court https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1707/eng@2026-09-25 3

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correctly stated in Selle & Another vs. Associated Motor Boat Company Limited & Others [1968] EA 123 (by Sir Clement De Lestang V.P) over legal duty in rst appeals thus: “An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briey put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusion. Though it should always bear in mind that it has neither seen nor heard the witness and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s ndings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence on the case generally.” 18. We have considered this appeal, the submissions by counsel, the evidence adduced, the cases relied upon and the law. Having done so, we are of the view that what falls for our determination is whether the trial Judge applied the wrong principles of law on adverse possession and whether he arrived at the wrong decision. 19. We considered the arguments by counsel to the parties. On the issue of the legal principles on adverse possession, they argued as follows: 20. Mr. Magee submitted that a claim for adverse possession can only succeed where the claimant has dispossessed the registered owner of land, relying on the case of Richard Wefwafwa Songoi vs. Ben Munyifwa Songoi [2020] KECA 942 (KLR) for the proposition that the principle is that adverse possession must begin with the wrongful dispossession of the registered owner. He also relied on Sisto Wambugu vs. Kamau Njuguna [1983] KECA 69 (KLR), for the proposition that the focus is whether the true owner has been dispossessed or has discontinued possession for the statutory period of 12 years. Mr. Magee argued that in this case, the respondent allegedly entered the suit land pursuant to a letter of allotment from the Council, and that she was unaware that the 1st appellant was the registered owner. He contended that the respondent, therefore, lacked the necessary intention to dispossess the owner of the suit land and could not, therefore, claim it by adverse possession. 21. Second, he argued that the respondent’s reliance on both a letter of allotment and a claim for adverse possession was legally inconsistent because possession based on permission cannot simultaneously be adverse. For this counsel relied on the case of Chairman, Board of Governors Murang’a College of Technology Primary School vs. Julius Ngigi Munjuga [2018] KECA 193 (KLR) where this Court held that a claim based on allotment is inconsistent with one based on adverse possession; and further on Wilson Kazungu Katana & 101 Others vs. Sahim Abdalla Bakshwein & Ali Abdalla Bakshwein [2015] KECA 728 KLR for the proposition that adverse possession requires entry as a trespasser rather than with permission. 22. Mr. Magee further submitted that the respondent only became aware of the registered owner after the appellants led an eviction suit in 2019, hence the respondent’s claim for adverse possession was unsustainable. Counsel emphasized and maintained that the respondent could only have entered the suit land after the subdivision of the mother title in December 2012, or at the earliest 2013 as alleged by the 2nd appellant. He urged that by the time the eviction suit was being led in the year 2019, only about six (6) years had lapsed, well short of the statutory period of twelve (12) years required for adverse possession. 23. Mr. Magee urged us to nd that the 1st appellant was entitled to orders of eviction against the respondent, being the registered and absolute proprietor of the suit land. That having proved that the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1707/eng@2026-09-25 4

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respondent was not entitled to the suit land by adverse possession or by allotment, it was the appellants’ submission that her possession of the suit land was unlawful. 24. On his part Mr. Makworo submitted that the Judge correctly found that the respondent had acquired the suit land by adverse possession having satised all the legal requirements. He urged that the doctrine of adverse possession in Kenya is founded under section 7 of the Limitation of Actions Act. Counsel relied on the case of Lewa vs. Mwagandi [2015] KECA 532 (KLR) and Mbura vs. Gachuhi [2002] 1 E.A.L.R 39 on the ingredients of adverse possession. He argued that the appellants’ reliance on the respondent’s letter of allotment from the Council was misplaced because the claim before the court was solely against the registered owner and not the Council. He submitted that the respondent’s possession had commenced in the year 1992 and continued openly and without the appellants’ consent for about twenty-seven (27) years before the eviction suit was led in the year 2019, thereby satisfying the statutory period for adverse possession. 25. Mr. Mwakoro submitted on the issue of the burden of proof in the case and urged that the Judge did not disregard the evidence adduced and the pleadings in Wang’uru ELC 49 of 2019, which had been consolidated with ELC 39 of 2019. He submitted that the appellants’ own pleadings and testimony were clear that they did not know when the respondent entered the suit land, and that by the time they moved to court in the year 2019, there was no evidence that the respondent’s occupation of the suit land had been interrupted. He urged that it was clear from the suit that the 1st appellant was evasive and did not indicate the time when the respondent entered the suit land, nor did she also indicate the steps she took to stop the respondent from trespassing into the suit land. 26. The Judge found that the appellants’ replying adavit clearly showed that the then (Kerugoya/Kutus Municipal) Council had dealings with the land as the reason it placed a restriction over the suit land. He also found that the appellant could not remember the exact time the applicant occupied the suit land; and that the 2nd appellant suspected it was in the year 2013. The Judge relied on the photographs produced by the respondent as evidence of occupation of the suit land, and was convinced that they conrmed that the structures on the suit land were built more than 12 years ago. He found that the appellants, on their part did not produce any evidence to prove that they had occupied the suit land. The Judge stated that he was satised that the respondent had been in adverse occupation of the suit land. 27. We will begin by considering what constitutes adverse possession. In the case of Kasuve vs. Mwaani Investments Ltd & 4 Others [2004] KLR 184 denes adverse possession thus: “ In order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of land openly and as of right and without interruption for a period of 12 years, either after dispossessing the owner or by discontinuation of possession by the owner on his own volition. See Wanje v Saikwa [1984] KLR 284.” 28. In India, the Supreme Court decision in the case of Kamataka Board of Wakf vs. Government of India & Others [2004] 10 SCC 779 the Court stated thus: “ It is a well settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continues. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1707/eng@2026-09-25 5

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29. In Alfred Welimo vs. Mulaa Sumba Barasa, CA No 186 of 2011, this Court, dealing with the issue whether the fact the owner is not present on their land constitutes abandonment, expressed itself thus: “ It is trite that adverse possession is not established merely because the owner has abandoned possession of his land and ceased to use it; for as Robert Megarry aptly observed in his Megarry’s Manual of the Law of Property, 5th ed. page 490, the owner may have little present use for the land and that land may be used by others, without the users demonstrating a possession inconsistent with the title of the owner. So the mere fact that the appellant abandoned possession of the suit land and went to live at Ndalu scheme by and of itself does not establish adverse possession. The abandonment of possession must be coupled with the respondent taking possession of the land with animus possidendi (the intention to possess) and asserting thereon rights that are inconsistent with those of the appellant as the owner of the land….” (Emphasis added) 30. These cases, Kasuve vs. Mwaani Investments Ltd. & 4 Others, (supra), Kamataka Board of Wakf vs. Government of India & Others, (supra), and Alfred Welimo vs. Mulaa Sumba Barasa, (supra), set out the principles that a party claiming adverse possession must establish: that he was in exclusive possession of land openly and as of right and without interruption for a period of 12 years, either after dispossessing the owner or by discontinuation of possession by the owner; he must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continues; and, the abandonment of possession by the owner of the land must be coupled with the respondent taking possession of the land with animus possidendi, that is, the intention to possess and asserting thereon rights that are inconsistent with those of the appellant as the owner of the land. 31. We have seen the respondent’s supporting adavit in support of the originating summons. She pleaded thus: 32. “ 3. That I have been in exclusive peaceful and quiet possession of land parcel number Kabare/Nyangati/6154 without any interruption for a period of more than 12 years. 4. That I occupied and lived on land parcel number Kabare/Nyangati/6154 continuously since the year 1992 and I have fully developed the same. I have built permanent and semi-permanent houses… 8. That I came into land parcel number Kabare/Nyangati/3158 after the then Kerugoya/Kutus Municipal Council had subdivided plots out of land parcel number Kabare/Nyangati/3158 and was allotting the said plots to members of the public. 10. That subsequent to the subdivision I was allotted Jua Kali Plot Number 56 in the year 1992. 11. That I have therefore been in occupation of land parcel number Kabare/ Nyangati/6154 exclusively and without any interruption by the respondents for a period of over 12 years hence I am entitled to the orders sought.” The respondent in her supporting adavit to the originating summons pleaded: i. that she had been on the suit land (6154) for over 12 years, since 1992. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1707/eng@2026-09-25 6

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33. ii. that she entered parcel no. Kabare/Nyangati/3158 after the Council subdivided the said land into plots, and she was allotted one plot no. 56. iii. That after the then Kerugoya/Kutus Municipal Council had subdivided plots out of land parcel number Kabare/Nyangati/3158 and was allotting the said plots to members of the public and she was allotted Jua Kali Plot Number 56 in the year 1992. The respondent’s pleading is clear that she was laying claim to two parcels of land; Kabare/ Nyangati/6154 and Kabare/Nyangati/3158. In respect of 6154, she stated that she had been in possession for over 12 years. In respect of 3158, she pleaded that she entered the said land after being allotted Jua Kali plot by the Council. In other words, her claim was based on allotment and adverse possession. This Court had the following to say, in regard to a claim of this nature, in the case of Chairman, Board of Governors Murang'a College of Technology Primary School vs. Julius Ngigi Munjuga [2018] eKLR: "A claim based on allotment is not the same as a claim based on adverse possession. The appellant could not assert a right of an adverse possessor and in the same breath claim to have been allocated the land in 1990.” 34. It is clear that the respondent could not, with such pleadings and on basis of such evidence, meet the threshold for establishing a claim for adverse possession. Not to mention that, considering the totality of the evidence adduced before the court, the suit land was created out of 3158 in 2012. The OS was led in 2019, meaning by the time the OS was led, a period of just over six years from 2012 had elapsed, and, therefore, the necessary period of 12 years for a claim of adverse possession was not met. 35. This is how the persuasive case of the High Court correctly put it in the case of Amos Weru Murigu vs. Murata Wangari Kambi & Another (H.C.C.C. No. 33 of 2002 (O.S) (at Kakamega): “ adverse possession can only arise where land is registered in the name of the person against whom the claim for adverse possession is made for the simple reason that land must be occupied by a trespassing claimant adversely to the title of the owner (proprietor) against whom the claim is made under Section 38 of the Limitation of Actions Act.” And further that: “Where a person is a benecial owner or is a beneciary entitled to, but is not registered as a proprietor of land registered under any of the statutes cited in S.37 of the Limitation of Actions Act, the doctrine of adverse possession cannot be invoked against him or her. A benecial owner may not be in a position to eectively assert his or her title to the land and time cannot run against such benecial owner.” 36. In respect of 3158, it was registered in the name of the 2nd appellant in 1995. So if the respondent was in occupation in 1992, she was not occupying that parcel of land. Secondly, she claims she was allotted a plot out of sub-division of 3158 by the Council. That means her entry into that land was by the permission of the Council. Adverse possession could not apply to the respondent’s claim in the circumstances of this case. 37. The respondent’s oral evidence was that she did not know who owned the suit land until she was sued for trespassing into the suit land. One cannot be in adverse possession if they do not know who owns the land, and further, the respondent should have taken possession of the land with animus possidendi, the intention to possess and assert thereon rights that are inconsistent with those of the owner of the land. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1707/eng@2026-09-25 7

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Having entered the land with permission of the Council, a claim of adverse possession cannot stand. 38. We nd that the learned Judge shifted the burden to prove how long the respondent had been in occupation of the suit land against the appellants. The Evidence Act, section 107 thereof that provides that the burden of proof lies with the one who desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. It further provides under subsection (2) that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In this case, it was the respondent who was claiming adverse possession and, therefore, the burden lay with her to prove that her possession of the suit land met the requisite period. 39. We also nd that the Judge erred to use pictures of structures in photographs produced by the respondent to determine how long the structures had been on the land for purposes of determining how long the respondent had been in occupation. The proof of possession cannot be determined by some abstract pictures produced in court, without some concrete evidence with which a denite determination could be made or assessed. Such evidence was the most unreliable tool of assessing passage of time. The respondent should have adduced satisfactory and acceptable evidence with which a determination could be made of the length of time she had been in occupation of the suit land. 40. We nd that after a careful analysis of the evidence adduced before the trial court, the respondent did not prove her case for a nding of acquisition of the suit land through adverse possession. The respondent did not prove that the 1st appellant’s title to the suit land had extinguished by reason of adverse possession. The respondent’s claim was convoluted, had no legal basis and no judgment could have been entered in favour of the respondent on the basis of such evidence and such claim. 41. In respect of the appellants’ case, their advocate urged that the Judge failed to consider their plaint or make a determination of their claim. We agree there was no determination of the appellants’ case. We set out herein above their claim against the respondent, and the orders they sought against her. The 1st appellant via the plaint dated 22nd July, 2019 sought judgment against the respondent as a trespasser and an order that the respondent immediately vacates and gives vacant possession of the suit land to the 1st appellant, the registered owner, and in default eviction order to issue against her. 42. There is no dispute that the respondent entered the 1st appellant’s suit land and built structures thereon which she was renting out to others. The entry, according to the 2nd appellant, was in 2013, and was made without permission from the appellants. We are satised that the appellants were able to prove their case against the respondent. The Judge should have entered judgment in their favour. 43. We have come to the conclusion that the Judge did not apply the requisite principles of adverse possession, that he shifted the burden of proof against the appellants, and came to the wrong decision in the case. 44. The result of this appeal is that the respondent’s case fails, and the appellants’ appeal succeeds. We make the following orders: i. The appeal against the judgment of Kerugoya ELC No. 39 of 2019, as consolidated with Wanguru Magistrates’ ELC No 49 of 2019, by Cherono, J. dated 23rd July, 202 be and is hereby allowed; ii. The judgment of Kerugoya ELC No. 39 of 2019, as consolidated with Wanguru Magistrates’ ELC No 49 of 2019, by Cherono, J. dated be and is hereby set aside; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1707/eng@2026-09-25 8

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iii. The respondent’s Originating Summons dated 19th September, 2019 in Kerugoya ELC 39 of 2019 be and is hereby dismissed with costs of the suit before the ELC and of this appeal to the appellants; iv. Judgment be and is hereby entered for the appellants, in terms of the plaint dated 22nd July, 2019 led in Wanguru Magistrates ELC No. 49 of 2019, that consolidated in Kerugoya ELC no. 39 of 2019, with costs of the suit before the ELC and of this appeal. DATED AND DELIVERED IN NYERI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA ……………………………… 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/2026/1707/eng@2026-09-25 9

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