Ondieki v Kemuma

4. On 29th October, 2019, the trial court (Hon. E.A. Obina) delivered judgment in favour of the appellant, declaring him the legitimate owner of the suit land, having acquired good title to it. The court found that the respondent had agreed to transfer the suit land from himself to the appellant, accepted partial payment for the land, and executed the necessary transfer documents. The respondent’s claim of adverse possession was subsequently dismissed, and he was ordered to stay out of the boundaries of the suit land. 5. The respondent was aggrieved with the decision of the trial court and led an appeal at the Environment and Land Court (ELC) at Kisii. The ELC analyzed the evidence and grounds of appeal and summarized the issues for determination as: whether the appellant is the legitimate registered owner of the suit property; and, whether the respondent had acquired the suit land through adverse possession. 6. In its judgment dated 10th February, 2021, the ELC agreed with the trial court that there existed a valid agreement between the parties and the appellant acquired good title to the land. However, the ELC observed that the trial court erred by failing to consider the respondent’s claim of adverse possession. It noted that the evidence that the respondent and his family had been in continuous, open and peaceful occupation of the suit land since its transfer in 1999 was not controverted. That the period of occupation of the suit land exceeded the 12 years required for the claim for adverse possession. Consequently, the rst appellate court allowed the appeal with costs to the respondent. 7. Dissatised with part of the ELC’s Judgment and decree, the appellant preferred an appeal to this Court. The memorandum of appeal dated 13th July, 2021 raises four (4) grounds of appeal as follows: i. The learned appellate Judge erred in law and fact in holding that the respondent herein had acquired adverse possession over the suit land against the appellant’s title on insucient evidence on record. ii. The learned appellate Judge misdirected herself in holding that the respondent had proved that he acquired adverse possession over the suit land in the subordinate court, which is a court that did not have jurisdiction to hear and determine issues to do with adverse possession. iii. The learned appellate Judge erred in law in allowing the appeal, which was not urged before the court by the respondent and ought to have struck it out or dismissed it. iv. The learned appellate Judge decided the appeal without paying regard to the submissions by counsel for the appellant herein. 8. The appellant’s prayer before this Court is that: the appeal be allowed and the Judgment and decree of the ELC dated 10th February, 2021 be set aside or reviewed; this Court be pleased to substitute the ELC’s Judgment and decree and arm or uphold the decision of the subordinate court; such other relief this Court may deem just and expedient to grant; and the respondent be condemned to pay costs of this appeal and in the ELC. 9. In the appellant’s submissions dated 1st November, 2025, it was urged that the ELC erred in allowing the respondent's appeal, which was not actively urged because the respondent failed to le submissions or attend court despite multiple opportunities. Citing Order 42 Rule 20 of the Civil Procedure Rules, the appellant contended that the rst appellate court should have dismissed the respondent’s appeal for lack of appearance and prosecution. 10. The appellant submitted that the respondent’s claims of adverse possession were not supported by proof of occupation for the required 12-year period. That he denied the claim for adverse possession https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1872/eng@2026-09-25 2

page 2 of 6

in the reply to defence. At the same time, the evidence of Alice Nyanchoka Ondieki (PW1) did not establish the respondent’s adverse possession of the suit land. The appellant argued that the respondent raised adverse possession in his defence, not as a counterclaim for which the Court would proceed to grant. That the rst appellate court thus erred in law in granting a relief not prayed for in the pleadings. 11. In addition, the appellant argued that the subordinate court lacked the jurisdiction to determine a claim for adverse possession. He referenced Section 38(1) of the Limitation of Actions Act (Cap 22), which stipulates that applications for adverse possession should be made to the High Court. The appellant thus urged this Court to allow the instant appeal. 12. The respondent’s submissions are dated 26th May, 2026. He urged that the appeal is an attempt to re-litigate settled facts, which is impermissible in a second appeal. That the Court of Appeal’s jurisdiction in second appeals is strictly limited to matters of law and the Court should not interfere with concurrent ndings of fact made by the subordinate and superior courts, unless there is a complete absence of evidence, misapprehension of evidence, or error in legal principles (see Pithon Waweru Maina v Thuka Mugiria [1983] KECA 117 (KLR)). The respondent contended that the appellant had failed to demonstrate any error of law, misdirection or misapprehension of evidence on the part of the rst appellate court to warrant the intervention of this Court. 13. It was the respondent’s submission that the ELC as the rst appellate court correctly determined that title to the suit land was acquired through adverse possession. He asserted that they maintained open, peaceful, exclusive, and continuous occupation of the property for over 12 years, thereby extinguishing the appellant’s title by operation of law pursuant to Sections 7, 17 and 38 of the Limitation of Actions Act. He noted that this Court armed this position in Sisto Wambugu v Kamau Njuguna [1983] KECA 69 (KLR) that adverse possession is established where the registered owner has either been dispossessed of the land or has discontinued possession thereof and where the acts of the person in possession are inconsistent with the owner’s enjoyment of the property. The respondent called for the appeal to be dismissed with costs to him. 14. When this appeal came up for plenary hearing before us Mr. Soire learned counsel appeared for the appellant while, Mr. Otukho learned counsel appeared for the respondent. Both counsel relied on their respective written submissions on record. 15. Our jurisdiction on a second appeal is strictly limited to questions of law only. The Court cannot reevaluate, re-assess, or re-examine ndings of fact unless the lower courts’ factual determinations were completely perverse or made without any supporting evidence or jurisdiction. In Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR, this Court rmly held that in a second appeal, we have to resist the temptation of delving into matters of fact. Bearing in mind that principle, we proceed to determine the issues of law in the present appeal. 16. We have considered the grounds of appeal and the parties’ respective submissions and sieve out the preliminary issue for determination as whether the ELC as the rst appellate court could proceed to determine the appeal in circumstances that the respondent had not complied with order 42 rule 16 as read with rule 20 of the Civil Procedure Rules. If we determine the preliminary issue in favour of the respondent, the substantive issues in the appeal are whether the ELC could determine the issue of adverse possession in favour of the respondent in absence of the counterclaim and jurisdiction on the part of the trial court to determine the issue of adverse possession; and, whether adverse possession was established by the respondent. 17. Order 42 rule 16 of the Civil Procedure Rules states as follows: “ 16. Filing declaration and written submissions [Order 42, rule 16] https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1872/eng@2026-09-25 3

page 3 of 6

18. Any party to an appeal who does not intend to appear in person or by advocate at the hearing of the appeal may le a declaration in writing to that eect and lodge written submissions of the arguments in support of or in opposition to the appeal, as the case may be and shall, within seven days after lodging the submission serve a copy thereof on the other party or on each other party appearing in person or separately represented. 2. A party who has lodged written submissions under this rule may, with leave of the court, address the court at the hearing of the appeal.” On the other hand, Order 42 rule 20 thereof states as follows: “ 20. 19. 1. Dismissal of appeal for appellant’s default [Order 42, rule 20] 1. Where on the day xed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, and has not led a declaration under rule 16, the court may make an order that the appeal be dismissed. 2. Where the appellant appears, and the respondent does not appear and has not led a declaration under rule 16(3), the appeal may be heard ex parte.” The record of appeal shows the proceedings before the ELC as follows. The appeal was initially mentioned on 4th May, 2020 in the absence of both parties on account of the Covid -19 situation and the learned Judge directed a mention notice to issue to the parties for mention on 16th June, 2020 for directions. On 16th June, 2020 Mr. Godia learned counsel for the respondent (appellant therein) was present but counsel for the appellant (respondent therein) was absent. Mr. Godia informed the ELC that he had agreed with his senior colleague Mr Soire that the appeal be canvassed by way of written submissions and the ELC directed that the parties le and exchange submissions within 30 days and, Mr.Godia to serve a mention notice upon the respondent for conrmation of ling of submissions on 29th July, 2020. On 29th July, 2020 Mr. Soire was present and he informed the ELC that he had led submissions for the appellant but since the submissions had not reected on record, the ELC directed counsel to serve a mention notice for 1st October, 2020 to conrm the ling. On 1st October, 2020 counsel for the appellant was not present and Mr. Soire conrmed to the RLC that he had led the appellant’s submissions but had not been served with the respondent’s submissions. The ELC directed a mention on 28th October to conrm ling of submissions and come that date both parties were absent and the ELC directed a mention notice to issue for 9th December, 2020 yet again to conrm the ling of submissions. On 9th December, 2020 Mr. Soire was present but Mr. Godia was absent and the ELC directed that judgment would be delivered on 10th February, 2021 and further that the respondent to le the submissions in 14 days. On 10th February the judgment was delivered in open court in favour of the appellant therein (the respondent herein) together with costs. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1872/eng@2026-09-25 4

page 4 of 6

20. Paragraph 12 of the impugned judgment states thus: “ 12. The appeal was canvassed by way of written submissions. The Respondent’s learned counsel led written submissions on 28th July 2020 but the Appellant did not le its submissions.” 21. By that record we are satised that the respondent herein being the appellant in the proceedings before the ELC failed to comply with the provisions of Order 42 rule 16 of the Civil Procedure Rules on ling of a declaration in writing to the eect that the appellant did not intend to appear in person or by advocate at the hearing of the appeal and would lodge written submissions of the arguments in support of the appeal. Instead, the respondent’s counsel opted to le submissions which he failed to do and also failed to attend the hearing without ling a declaration that the respondent as the appellant therein did not wish to attend the hearing. 22. Upon that default, we are satised that Order 42 rule 20 of the Civil Procedure Rules was thereby triggered and the ELC had no basis to direct and x the delivery of the judgment and to deliver on 10th February, 2021 the impugned judgment now subject of this appeal. Instead, consequential to the default to le submissions and to appear at the hearing, the ELC ought to have dismissed the appeal or given such further directions on compliance as would be just. We have observed the numerous opportunities the respondent had been given to le the submissions but had failed to comply as directed. If the ELC desired to advance expeditious closure of the pending appeal, it was open to dismiss the appeal in view of the persistent default of failure of the appellant therein to le submissions and to attend at the various mention dates that were given generously, presumably due to the then prevailing Covid – 19 situation. Subsequently, if there was a grievance owing from such dismissal, then an application would be made to urge a restoration of the dismissed appeal. 23. We note that Order 42 rule 20 of the Civil Procedure Rules prescribes a dismissal and not a judgment in the event that the appellant before the superior court is in default. Such dismissal for default allows such appellant to apply for re-admission under Order 42 rule 21 if the appellant had a sucient cause while a judgment on the merits creates res judicata, forcing an expensive second appeal because the ELC thereby becomes functus ocio. We are satised that where the appellant is in default as contemplated under Order 42 rule 20, the ELC should not craft a judgment which would in that event, like in the instant impugned judgment subject of this appeal, be speculative about the grounds of appeal. 24. Thus, this Court in Susan Wangari Mwangi v Nangenye Gatonye Waragania [2014] KECA 490 (KLR) held that the superior court may dismiss an appeal on account of a default per Order 42 rule 20 and the appellant may move under Order 42 rule 21 to seek reinstatement as may be appropriate, thus: “ 8. The appellant’s appeal was dismissed for non- attendance under the provisions of Order 42 rule 20 of the Civil Procedure Rules. Order 42 rule 21 of the Civil Procedure Rules provides “where an appeal is dismissed under rule 20, the appellant may apply to the court to which such appeal is preferred for the readmission of the appeal; and, where it is proved that he was prevented by any sucient cause from appearing when the appeal was called on for hearing, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks t.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1872/eng@2026-09-25 5

page 5 of 6

In Richard Nchapi Leiyagu -vs- IEBC & 2 others- Civil Appeal No. 18 of 2013,this Court expressed itself as follows “We agree with the noble principles which go further to establish that the court's discretion to set aside an ex parte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice.”….” 25. Accordingly, the appellant’s preliminary ground of appeal that the ELC being the rst appellate court erred in law in allowing the appeal which was not urged before it by the respondent and ought to have struck it out or dismissed it, will succeed. In that respect, we will not delve into the analysis and determination of the identied issues of merits raised in this appeal against the impugned judgment which we consider to have been irregular. 26. In the premises we allow the appeal; set aside the judgment and decree of the ELC subject of this appeal together with all processes owing therefrom, and substitute therefor an order dismissing the rst appeal with costs for the appellant herein; and, the respondent to pay the appellant’s costs of this appeal. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ................. JUDGE OF APPEAL E. C. MWITA ................. JUDGE OF APPEAL B. ONGAYA ................. 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/2026/1872/eng@2026-09-25 6

page 6 of 6