Benjamin Omanwa Mokua v Bishendass Beri, Maalim Dakane Ali, Chief Lands Registrar Nairobi & Attorney General

began when the appellant, by way of originating summons dated 4th June, 2014 against the 1st respondent, moved the trial court for Page 2 of 24

page 2 of 46

a declaration that: LR. No 209/3630 Registered under Grant No. IR 9417 (Nairobi South B) (“the suit property”) be deemed to belong to him under adverse possession, that he be registered as the owner of the suit property, that an order be issued directing the Land Registrar Nairobi, the 3rd respondent herein, to register the suit property in his favour and costs be provided for. 2. Similarly, the appellant by way of a plaint dated 14th December, 2015 moved the trial court; for a declaration that the transfer of the suit property to the 2nd respondent was fraudulent null and void; for cancellation of the transfer effected by the 3rd respondent to the 2nd respondent; for an order for the rectification of the certificate of title to read the name of the 1st respondent as the registered owner of the suit property; cost of the suit and interest at court rates. 3. From the record, on or about 10 th March, 1998, the appellant’s son one Ken Omanwa who was the tenant of the 1st respondent herein, left the appellant to stay on the suit property since he was relocating to the United States. The appellant avers that he has continuously stayed in the suit property openly, peacefully and uninterrupted for a period of Page 3 of 24

page 3 of 46

over 12 years. It was the Page 4 of 24

page 4 of 46

appellant’s averment that based on the letter dated 31 st March, 2014 drawn by MA Khan Advocate, the 2 nd respondent’s counsel, Ken Omanwa had not paid any rent in respect of the suit property since 1st June, 2000. The appellant contended that the said letter is proof that no one had interrupted his possession for over 12 years. 4. The appellant further stated that on 16 th June, 2014, the trial court granted an order that the 1 st respondent be served with the originating summons and the Notice of Motion application by way of substituted service. The appellant averred that this was done by advertisement in the Standard newspaper issue of 19 th June, 2014. The appellant averred that the 1st respondent did not enter appearance and on 18th September, 2015, the trial court granted him an injunction. The appellant stated that on 1 st October, 2015, he went to the land registry to register the said order only to be informed that the suit property did not belong to the 1st respondent but instead belonged to the 2nd respondent. 5. The appellant stated that upon conducted an official search, the official search showed that the 1st respondent had Page 5 of 24

page 5 of 46

purportedly transferred the suit respondent Page 6 of 24 property to the 2nd

page 6 of 46

on 19th July, 1989. In his plaint, while alleging fraud in the transfer, the appellant lists the particulars of fraud and misrepresentation on the part of the 2nd respondent. The appellant further stated that he was evicted from the suit property despite existence of a court order. The appellant faults the 2nd respondent for loss of his abode, house hold goods and valuable documents including title deeds for other properties. 6. At the trial court, the 3 rd and 4th respondents filed a statement of defence dated 2nd March, 2016 denying the appellant’s averments. The two matters i.e., ELC Case No. 1288 of 2015 and cause No. 692 of 2014 were consolidated. 7. The trial court identified two issues for determination as: whether the appellant proved that he was entitled to a declaration that he had acquired the suit property by adverse possession and whether the transfer from the 1 st respondent in the second suit to the 2 nd respondent was fraudulent. By a judgment dated 13th February, 2020, the trial court found that the appellant had failed to prove the two suits on a balance of probabilities and dismissed the Page 7 of 24

page 7 of 46

same with no orders as to costs. 8. Dissatisfied by the judgment, the appellant filed the instant appeal before this Court on nine grounds, disputing the findings Page 8 of 24

page 8 of 46

of the trial court and alleging that the learned Judge erred in both law and fact by — (a) holding that the appellant failed to provide a certified copy of the register in HC ELC No. 692 of 2015 (OS) yet the appellant did provide the same in ELC Suit No 1288 of 2015 which suits had been consolidated; (b) treating the 2 suits differently by separating evidence presented to him yet the said suits had been consolidated; (c) failing to appreciate that the issue of certified copy of the register is a matter of evidence which merely supports the grounds for establishing a claim for adverse possession. The fact that the appellant did provide a copy of the title was sufficient to discharge the evidential burden the same not being opposed by any party; (d) failing to appreciate that the matter did indeed go for pre-trial conference and no party objected to the copy produced by the appellant; (e) holding that even if the court found that the 1st respondent was the registered owner, the appellant’s claim for adverse possession would have failed as he was invited to the suit property by his son who was the previous tenant. The learned Judge failed to appreciate that the appellant’s son left in March 1998 and his tenancy terminated then; (f) failing to consider the evidence produced by the appellant showing that his subsequent occupation of the suit property was not based on Page 9 of 24

page 9 of 46

any tenancy Page 10 of

page 10 of 46

agreement but was actual, open, uninterrupted, notorious, exclusive and continuous; (g) failing to appreciate the evidence presented to him established a clear case of fraud in regard to the transfer to the 2nd respondent; (h) failing to appreciate that the suits were undefended and the evidence presented by the appellant unrebutted; and (i) failing to address the issue of fraud having found that the appellant was unprocedurally evicted. This is because the two issues were hinged together and the learned Judge therefore erred in making a different determination on both issues. 9. The appeal was heard virtually on 24 th March, 2026. Learned counsel Mr. Gomba appeared for the appellant. He relied on his submissions dated 1st March, 2021 and also made oral highlights of the submissions. There was no appearance for the respondents, neither did they file any written submissions. The Court was satisfied that service was effected upon all the parties. 10. The appellant merged the nine grounds identified in the Memorandum of Appeal into four grounds. 11. On the first issue covering grounds 1, 2 and 3, it is the appellant’s case that the learned Judge erred in law and in Page 11 of

page 11 of 46

fact Page 12 of

page 12 of 46

in holding that the appellant failed to provide a certified copy of the register in ELC No. 692 of 2015 (OS) yet the appellant did produce the same in ELC No. 1288 of 2015 which suits had been consolidated. Mr. Gomba urged that since the two suits had been consolidated, the evidence adduced in any suit would suffice to be relied on in the determination of both suits and any question of law and fact arising out of the suits as consolidated. 12. The appellant submitted that in respect of failure to adduce a certified copy of the register as observed by the trial Judge, the appellant produced the same in compliance with Order 37 (7) of the Civil Procedure Rules. The appellant submitted that the import of the provision is that production of certified copy of title is mandatory for any application brought under section 38 of the Limitation of Actions Act, Cap 22. The appellant contended that production of the title or a certified extract of the title can either be by way of an affidavit or during the hearing of the viva voce evidence. 13. The appellant further avers that even though he did not annex the certified copy of the title document in his Page 13 of

page 13 of 46

supporting affidavit in the Originating Summons for adverse possession, he Page 14 of

page 14 of 46

eventually adduced the same in his copies of documents in ELC No. 1288 of 2015. The appellant concludes by stating that he produced a certified copy of title in ELC No. 1288 of 2015 vide copies of documents to be relied on dated 14 th December, 2015 and therefore met the threshold of the legal requirements of Order 37 Rule 7 of the Civil Procedure Rules, 2010 by producing a certified copy of the title. 14. The appellant merged grounds 5 and 6 where he challenges the decision of the trial court on grounds that the learned judge erred in law and in fact in holding that the appellant was invited to the suit property by his son who was the previous tenant and therefore his claim for adverse possession would fail and that he also failed to consider that the appellant’s occupation was not based on tenancy agreement but was actual, open, uninterrupted, notorious, exclusive and continuous. The appellant submitted that he took over the occupation of the suit property on 12th March, 1998 after his son Ken Nyasimi Omwana who was a tenant of the 1st respondent relocated to the USA. He argued that upon relocation to the USA, the tenancy between his son and the 1st respondent terminated. Page 15 of

page 15 of 46

15. He further averred that the tenancy having terminated, he moved into possession of the suit property without permission of the 1st respondent and never paid rent for the suit property nor did the 1st respondent demand rent from him. The appellant therefor submitted that his continued occupation and use of the suit property was intended to dispossess the 1st respondent and any other person in the whole world of the suit property. 16. He concludes that his entry and occupation was hostile under a claim of color of title, actual, open, uninterrupted, notorious, exclusive and continuous having stayed in the suit property for over 12 years preceding the filing of his claim. The appellant relies on the following cases to support his case; Kweyu vs Omuto [1990] KLR 709, Mtana Lewa vs Kahindi Ngala Mwangandi [2015] eKLR and Titus Mutuku Kasuve vs Mwaani Investments Limited & 4 Others [2004] eKLR where this Court restated the essential prerequisites for a claim for adverse possession to succeed. 17. The appellant also attacked the 2 nd respondent’s ownership Page 16 of

page 16 of 46

of the suit property on grounds of fraud as stated on grounds 7 and 8 of the Memorandum of Appeal. On this, counsel for the Page 17 of

page 17 of 46

appellant submitted that the transfer of the suit property by the 1st respondent to the 2nd respondent was fraudulent and could not defeat the appellant’s claim of adverse possession. Counsel submitted that the appellant pleaded and proved fraud as required by section 107 of the Evidence Act, that he particularized fraud and misrepresentation on the part of the 2 nd respondent vide his plaint in ELC No. 2015. He submitted that the 2 nd respondent was part of the fraud because the tenancy agreements purported to have been executed by the tenant Ken Nyasimi, appear to have been executed long after the said tenant had relocated to the USA. 18. On whether the trial court failed to address the issue of fraud, the appellant’s counsel submitted that the 2 nd respondent’s purported transfer of the suit property was void and could not defeat the appellant’s adverse possession claim. The appellant’s counsel contended that the 2 nd respondent’s action of levying for distress of rent against the appellant was unlawful. The appellant’s counsel submitted that the suit property did not belong to the 2nd respondent as he acquired it fraudulently. The appellant’s counsel relied on Page 18 of

page 18 of 46

Section 26 of the Land Page 19 of

page 19 of 46

Registration Act, Section 107 of the Evidence Act and the case of Arthi Highway Developers Limited vs West End Butchery Limited and Others, Civil Appeal No. 246 of 2013. 19. On grounds 2 and 8 of the Memorandum of Appeal, the appellant averred that the learned Judge erred in law and in fact by treating the two suits differently by separating evidence presented to him separately and yet the suits were consolidated. He further averred that once the suits were consolidated, the evidence produced in any would suffice to be relied on in determination of any question of law or fact arising therefrom. He concludes that having submitted certified copy of title of the suit property produced in ELC No. 1288 of 2015, that would suffice and the trial court ought to have relied on it. 20. This being a first appeal, our mandate as a first appellate court is well-established as being a rehearing or retrial of the case based on the material on record. This duty is well defined in Rule 31(1)(a) of the Court of Appeal Rules [2022), which requires this Court to re-examine both issues Page 20 of

page 20 of 46

of law and fact. While this Court has the power to arrive at its own independent Page 21 of

page 21 of 46

conclusions, we must exercise restraint and be slow to overturn a trial court’s findings of fact because we did not have the advantage of seeing or hearing the witnesses. (See Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR). In Odera t/a AJ Odera & Associates vs Machira t/a Machira & Company Advocates [2013] KECA 208 (KLR) this Court reiterated its mandate in regard to first appeal thus: “…our primary role as a first appellate court [is], to re- evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that: “On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 21. In Volpi vs Volpi [2022] 4 WLR 48, a UK Court of Appeal decision, Lewison LJ summed up the law as follows: i. An appeal court should not interfere with the trial judge’s conclusions on primary Page 22 of

page 22 of 46

facts unless it is satisfied that he was plainly wrong. Page 23 of

page 23 of 46

ii. The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii. An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv. The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however preeminently a matter for him. v. An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable. vi. Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.” Page 24 of

page 24 of 46

22. Upon considering the record of appeal, the grounds of appeal, the submissions and the law, we discern two issues Page 25 of

page 25 of 46

for determination, to wit, whether the appellant proved that he acquired the suit property by virtue of adverse possession and whether the learned Judge did not consider the evidence relating to the certified copy of the title as he ought to have. 23. The learned Judge in dismissing the suits before him rendered himself thus: “The plaintiff contended that the transfer of the suit premises from the 1st defendant to the 2nd defendant in the second suit was fraudulent. There was absolutely no evidence adduced by the plaintiff to show that the transfer was fraudulent and that it was backdated. Had the plaintiff obtained a certified copy of the register when he filed the first suit, then the court would have questioned the subsequent entries. The photocopy which the plaintiff annexed to the originating summons in the first suit does not show when it was obtained. There is therefore no basis upon which the court can make findings that the transfer was made after the plaintiff had obtained his photocopy of title.” 24. The two issues are intertwined and shall be re-evaluated together. The main issue for determination is whether the appellant’s claim for adverse possession was exclusive, open, and adverse to the knowledge of the true owner. Page 26 of

page 26 of 46

The law on adverse possession is well settled in Kenya with its statutory Page 27 of

page 27 of 46

foundation being section 7 as read together with section 38(1) of the Limitation of Actions Act, (Cap 22). The Act provides that— “7. An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person…. 38(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.” 25. Sections 7 and 38(1) provides the statutory foundation for adverse possession meaning that a registered owner loses the right to evict an open, continuous, and non-permissive occupier after the twelve-year period elapses. The section further allows an unauthorised occupant who has used the land openly, peacefully, continuously and without the owner’s consent for over twelve years to apply to the court to be registered as the rightful owner. This Court in Kenga & 12 Others vs Mohamed [2025] KECA 2219 (KLR), Page 28 of

page 28 of 46

succinctly outlined the elements that Page 29 of

page 29 of 46

must be established for a claim of adverse possession to succeed. It stated that— “…a claimant must demonstrate the following elements: the date of entry — when possession of the land commenced; the nature of possession – whether it was exclusive, open, and adverse; knowledge by the true owner that such possession was being exercised; duration of possession; that it continued for at least 12 uninterrupted years; open and undisturbed occupation— that the possession was without secrecy, permission, or interruption (nec vi, nec clam, nec precario – meaning without force, without secrecy, and without permission).” 26. The appellant in the instant case entered the suit property on the invitation of his son who was the tenant to the 1st respondent. He then alleged that the tenancy in question had been terminated at the time he was moving in to occupy the suit property. It is his averment that having entered the suit property after the tenancy was terminated, he stayed thereon openly, exclusively, peacefully and adversely, claiming that time started running for the purposes of adverse possession. It is however not disputed that the appellant was invited into the suit property by his son Ken Nyamisi Omwana who was moving to the USA. Page 30 of

page 30 of 46

27. Indeed, it is the appellant’s case that he occupied the suit property on 12th March, 1998 at the invitation of his son, Ken Nyamisi Omanwa who had relocated to the United States of America. It is trite law that a person invited onto a leased property by a tenant generally cannot claim adverse possession because the tenant holds the property with the landowner’s permission (via a tenancy agreement). Accordingly, any guest entering through that tenant, derives his permissive authority from the owner’s initial consent and thereby failing the strict requirement that occupation be entirely without permission. 28. In the instant case, the appellant having been invited by his son who was the tenant of the 1 st respondent, occupied the suit property entirely on the permission of the 1 st respondent. Entry into the suit property was therefore not open. In Kihamba vs Mbaisi [2015] KECA 853 (KLR), this Court held that a person claiming land through adverse possession: “… must prove and demonstrate that he has occupied the land openly, that is, without force, without secrecy, and without license or permission of the land owner, with the intention to have the Page 31 of

page 31 of 46

land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin phraseology, nec vi, nec clam, nec precario. The Page 32 of

page 32 of 46

additional requirement is that of animus possidendi, or intention to have the land. See Eliva Nyongesa Lusenaka & Anor v Nathan Wekesa Omacha Kisumu Civil Appeal No. 134 of 1993 (UR). These prerequisites are required of any claimant, irrespective of whether the claimant and the respondent are related or whether the claim relates to family/ancestral land.” 29. The learned Judge in his judgment at paragraph 12 had this to say on the appellant’s occupation — “Even if the court were to find that the registered owner of the suit property was the 1st defendant in the second suit, the plaintiff would not have succeeded in his claim on adverse possession. This is because he was invited into the house of his son who was a tenant. He was living in the house at the invitation of his son who was a tenant and there is therefore no way he would have claimed ownership through adverse possession.” 30. We agree with the trial Judge’s finding that the appellant’s entry into the suit property was not open and therefore he could not succeed in his claim on adverse possession. He was occupying the suit property on the permissive authority of his son, who was the tenant herein. 31. Another critical limb on adverse possession is the requirement that there must be an apparent dispossession of the land from the land owner. From the records before Page 33 of

page 33 of 46

us, at the time the Page 34 of

page 34 of 46

appellant approached the court to lay claim of the suit property on adverse possession, ownership had already changed hands from the 1st respondent to the 2nd respondent. The claim for adverse possession was against the 1st respondent. 32. It was the appellant’s case that the 1 st respondent’s transfer of the suit property to the 2 nd respondent was null and void and could not defeat the appellant’s adverse possession claim. The appellant’s counsel further contended that the 2nd respondent’s action of levying for distress of rent against the appellant was unlawful because in any event, the suit property did not belong to the 2nd respondent as he had acquired it fraudulently. The fraudulent transfer according to the appellant, was meant to deny him from acquiring his prescriptive rights over the suit property by adverse possession. 33. On this point, we note that the title presented before the trial court was genuine and was not questioned. Indeed, when the appellant filed the plaint, upon conducting a search, he filed a certified copy of the title reflecting the Page 35 of

page 35 of 46

owner as being the 2nd respondent. The learned Judge had this to say— “I have already said herein above that the Plaintiff did Page 36 of

page 36 of 46

not provide a certified copy of the register. If indeed he obtained the photocopy from lands office, the question which begs an answer is why the same was not certified as a true copy of what was in the register. When the plaintiff went back to the Lands Office, he obtained a certified copy of the title which shows that the suit premises are in the name of the 2nd defendant in the second suit. This therefore means that the first suit cannot stand as it is against a person who is not the registered owner of the suit premises. ‘Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.’”(Emphasis added). 34. A plain reading of the Act is clear; an adverse possessor must apply for registration as the proprietor of the land or lease in place of the person then registered as proprietor of the land. At the time the appellant applied for registration on the basis of adverse possession, the registered proprietor was the 2nd respondent and not the 1st respondent. On the basis of section 38(1) of the Limitations of Actions Act, we agree with the findings of the learned judge and see no Page 37 of

page 37 of 46

reason to interfere with the findings in this regard. Page 38 of

page 38 of 46

35. The appellant’s main argument was that, the registration and ultimate transfer by the 1 st respondent to the 2nd respondent was fraudulent and geared towards denying him ownership. In an attempt to prove fraud, the appellant submitted that the purported tenancy agreement between Mr. Ken Omanwa was fraudulently executed because the dates on which it was purportedly executed, the said Ken Omanwa was already out of the country. He further submitted that different persons applied to levy distress against Ken Omanwa and in his view, this points to the fact that the 2nd respondent’s ownership is shrouded in controversy thus sufficient to establish fraud. 36. The law relating to fraud as ground for challenging a title is well settled. In order to prove fraud and invalidate a title deed, the fraud must be specifically pleaded and strictly proven. Section 26 of the Land Registration Act, 2012 provides— “(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and Page 39 of

page 39 of 46

indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject Page 40 of

page 40 of 46

to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme…” 37. The effect of the above provision is that registration as proprietor of land confers on the registered owner absolute and indefeasible title unless it is proved that the registration was procured through fraud, mistake or misrepresentation to which the registered owner was a party. So, the title of a registered proprietor can only be challenged and nullified if it is proved that the proprietor was party to any fraud, mistake, or misrepresentation pursuant to which registration was acquired. A look at the evidence adduced by the appellant does not point to fraud in the transfer of the suit property from the 1st respondent to the 2nd respondent. The evidence challenges the impropriety of the tenancy agreement and the distress for rent processes, but does not establish the nexus between the transfer and the registration. Indeed, the learned Judge observed that although the distress for rent was unprocedural, it had no bearing on the propriety of the Page 41 of

page 41 of 46

title. Page 42 of

page 42 of 46

38. Back to the case, the appellant specifically pleaded fraud in his plaint, but pleading alone does not suffice. It was incumbent on the appellant to prove the fraud. As has been said before, the standard of proof for fraud is higher than a standard civil balance of probabilities but does not reach the criminal threshold of beyond reasonable doubt. Fraud demands a stricter standard, so that mere allegations will not suffice. This Court has over the years developed settled jurisprudence on the requisite standard of proof for allegations of fraud. In Central Kenya Ltd vs Trust Bank Limited & 4 Others [1996] eKLR this Court stated thus: “The appellant has made vague and very general allegations of fraud against the respondents. Fraud and conspiracy to defraud are very serious allegations. The onus of prima face proof was much heavier on the appellant in this case than in an ordinary civil case.” 39. In the instant case, the appellant did not demonstrate to the required standard that the 2nd respondent participated in or had knowledge of a dishonest scheme a direct result of which, the title was transferred to him. We are unconvinced that the particulars of fraud pleaded were proved to the required standard going by the absence of any serious Page 43 of

page 43 of 46

attempt to table Page 44 of

page 44 of 46

concrete evidence to prove the allegations to the required degree. We therefore, agree with the learned Judge on this finding and see no reason to interfere with the same. 40. Consequently, and for the reasons above, we find and hold that this appeal lacks merit. The decision of the trial court is affirmed. Each party shall bear its costs. Dated and delivered at Nairobi this 25th day of September, 2026. L. ACHODE ..................................... JUDGE OF APPEAL PAUL LILAN ..................................... JUDGE OF APPEAL DR. J. O. OKELLO ..................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed Page 45 of

page 45 of 46

DEPUTY REGISTRAR Page 46 of

page 46 of 46