Newton Kuria & Another v Fredrick Mukiri Kingatia

eviction from the suit property, general damages for loss of user, costs of the suit, interest, and such further relief as the court deemed fit. The respondent pleaded that he was the registered proprietor of Page 2 of 21

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the suit property and that the appellants had unlawfully trespassed onto his land and refused to vacate despite demand and notice to do so. 3. In their statement of defence dated 28 th April 2005, and amended on 27th February 2019, the appellants denied trespassing and asserted that they had occupied the suit property since 1972, with the respondent's permission. They contended that they, together with their late mother, had established their homes on the land, extensively developed it and later buried her in it upon her demise. Subsequently, they claimed ownership of the suit property by adverse possession, maintaining that they had been in open, peaceful and uninterrupted occupation of the land for a period exceeding twelve years. 4. They challenged the validity of the decision in Embu Land Disputes Tribunal Case No. 20 of 2002, through which the respondent acquired title, contending that neither they, nor their interests had been represented in those proceedings. 5. The respondent filed a defence dated 23 rd March 2019, to the counterclaim. He averred that the appellants' occupation was purely permissive and that any licence granted to them terminated upon the conclusion of the Tribunal proceedings in 2003. He stated that the appellants' father, Nyaga Kabutu, had previously litigated over the same property before the Land Disputes Tribunal and had unsuccessfully challenged his claim to the land. Page 3 of 21

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6. At the hearing, the respondent testified as the sole witness in support of his claim and the 1 st appellant testified on behalf of all the appellants. 7. Testifying as PW1, the respondent stated that he was the registered proprietor of the suit property. He explained that although the land was initially registered in the name of the appellants' late father Nyaga Kabutu, ownership was subsequently transferred to the respondent following the determination of Embu Land Disputes Tribunal Case No. 20 of 2002. The Tribunal's award was thereafter, adopted as a judgment of the court in Embu SPMCC Tribunal Case No. 3 of 2003, resulting in his registration as the lawful proprietor of the suit property on 11th December, 2003. However, despite his lawful ownership of the land, the appellants continued to occupy portions of the suit property without any lawful justification. 8. PW1 testified that the appellants’ initial entry onto the land had not been adverse as he had entered with his consent. That permission previously granted to them ceased upon the determination of the Tribunal proceedings in 2003 when the respondent became the registered proprietor. He testified that the appellants’ father had already litigated over the same land before the Land Disputes Tribunal and had lost the claim. Consequently, the appellants could not relitigate the same dispute under the guise of adverse possession. 9. The 1st appellant testified as DW1 and stated that the appellants entered the suit property in 1972 with the permission and consent of Page 4 of 21 the respondent, whom he

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described as their uncle Page 5 of 21

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and who had resided on the land since the 1960s. The respondent personally showed them and their parents where to construct their houses and where to cultivate crops. The appellant and the respondent occupied approximately equal portions of the suit property, measuring about one and a half acres each. 10. The appellant relied on their long occupation of the suit property to support their claim for adverse possession. He stated that they had occupied the land openly, peacefully and continuously for several decades, developed it extensively by constructing houses and cultivating crops and had buried their late mother in it. He asserted that they had acquired ownership by law and pointed out that they were not parties to the earlier Tribunal proceedings through which the respondent acquired title and those proceedings should not bind them. 11. Upon evaluating the evidence, Angima J. found that the respondent had proved his case and allowed it. He found that the appellants had failed to prove their counter-claim and dismissed it. 12. Aggrieved by the judgment, the appellants filed the instant appeal. In a memorandum of appeal dated 5 th October, 2020, they raised seven grounds of appeal which we have collapsed into four. In summary they assailed the learned Judge for: i. failing to examine and evaluate the documentary evidence on record that supported the appellants' case. Page 6 of 21

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ii. failing to find that the appellants had acquired ownership of the 1½ acres they occupied by adverse possession despite overwhelming evidence. iii. failing to hold that the proceedings and award in Embu Land Disputes Tribunal Case No. 20 of 2002, later adopted in SPMCC No. 3 of 2003, were a nullity for want of jurisdiction and that the title deed issued pursuant to those proceedings was therefore invalid. iv. declaring the appellants trespassers despite evidence that they had occupied one-half of the suit property from the outset with the respondent's agreement. 13. The appellants appeared in person. The 1st appellant filed submissions dated 7th July 2025, on behalf of both appellants. He urged that the documentary evidence demonstrates that the suit property was purchased by the appellants' maternal grandmother, Esther Njambi, and that the respondent's sister Mary Wanjiku, who was also the appellants' mother, had a beneficial interest in the property. The respondent, being Mary Wanjiku's brother, allegedly held the suit land in trust for himself and his late sister's family, including the appellants. 14. The appellants posit that they had been in uninterrupted possession and occupation of one-half of the suit property since 1972, with the respondent's knowledge and acquiescence. They argue that the respondent had expressly allocated them one-half share of the land in recognition of their late mother's entitlement and that they had continuously occupied, developed and utilized that portion for several decades. In their view, the learned Judge Page 7 of 21

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failed to appreciate that their long, uninterrupted occupation entitled them to ownership by adverse possession. 15. On the issue of title, the appellants urge that the learned judge failed to appreciate that the proceedings before Embu Land Disputes Tribunal Case No. 20 of 2002 were a nullity for want of jurisdiction. That the Tribunal lacked statutory authority to determine questions of ownership and title to registered land. Therefore, the subsequent adoption of the award by the magistrate's court could not validate proceedings conducted without jurisdiction. Consequently, they submitted that the respondent's title, having originated from those proceedings, was equally invalid. 16. The respondent filed his submissions dated 10 th February 2026, through the firm of M/s Rabala & Company Advocates in opposition to the appeal and urged the Court to uphold the judgment of the Environment and Land Court. He identified the issues for determination as: whether the appellants were trespassers on the suit property; whether they had established a claim for adverse possession; and whether the decision in Embu Land Disputes Tribunal Case No. 20 of 2002 was null and void. 17. On the issue of trespass, counsel submitted that the respondent was the undisputed registered proprietor of land parcel No. Ngandori/Kirigi/2012, having been registered as the proprietor on 11th December 2003. It was argued that the appellants themselves had produced the land register at the trial, which confirmed the Counsel maintained Page 8 of 21 respondent's proprietorship.

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that the respondent lawfully terminated the appellants' licence to occupy the land by instituting proceedings against their father before the Land Disputes Tribunal and later filing the suit for eviction after obtaining title. Consequently, the appellants' continued occupation constituted trespass and amounted to an unlawful interference with the respondent's proprietary rights protected under section 24 of the Land Registration Act. 18. Regarding adverse possession, the respondent submitted that the appellants failed to satisfy the legal requirements governing such a claim. Relying on Wambugu v Njuguna [1983], Kasuve v Mwaani Investments Ltd & 4 Others [2004] 1 KLR 184, and Githu v Ndeete [1984] KLR 776, counsel asserted that adverse possession requires open, continuous and uninterrupted occupation for a period of at least twelve years. It is contended that time for the appellants could only begin to run against the respondent upon his registration as proprietor on 11th December, 2003 and cease running on 22nd March, 2005 when he instituted the present suit for recovery of the land. Accordingly, the appellants had only been in adverse possession, if at all, for approximately one year and three months, which fell far short of the statutory period. Counsel further submitted that time could not run against the appellants' own father while he remained the registered proprietor because their occupation was as members of his family and with his permission. 19. On the challenge to the Tribunal proceedings, counsel urged that the appellants' contention that the Tribunal lacked Page 9 of 21

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jurisdiction was misconceived as the proceedings before the Page 10 of

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Tribunal were instituted against the appellants' father, who was the registered proprietor at the time. They were not against the appellants who had no registrable interest in the property. Counsel asserted that the Tribunal's award was never challenged by the parties entitled to do so and, having been adopted as a judgment of the court, remained valid and binding. 20. Reliance was placed on the case of Florence Nyaboke v Mogere Amosi Ombui & 2 Others [2014] eKLR for the proposition that an unchallenged Tribunal award, adopted as a decree of the court, cannot subsequently be impeached through collateral proceedings. 21. The appeal came before Court for plenary hearing on 9th March, 2026. The 1st appellant appeared in person in the registry at Nyeri. The respondent was not present although he was duly served through the advocate’s email that was provided in the registry. 22. As the first appellate Court, our mandate is to re-evaluate the evidence on record and draw our own independent conclusions, while bearing in mind that we neither saw nor heard the witnesses testify, and give allowance therefore. This duty was succinctly stated in Selle v Associated Motor Boat Co. Ltd [1968] EA 123 as follows “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. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions Page 11 of

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though it should Page 12 of

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always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings 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 in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).” 23. Having considered the record of appeal, the rival submissions and the law relied on, we find that the issues that arise for our determination are whether: i. The appellants were trespassers in the suit property, ii. the appellants had acquired the property through adverse possession iii. suit The proceedings and award in Embu Land Dispute Tribunal Case No. 20 of 2002 were invalid. 24. The appellants assert that the evidence established that they had occupied one-half of the suit property continuously since 1972, with the respondent's knowledge and consent. That the respondent himself allocated them the portion they occupy in recognition of their late mother's beneficial interest in the land. They further argue that the respondent's subsequent attempt to evict them arrangement was inconsistent between the with the long-standing parties and the family circumstances surrounding the acquisition of the suit property. Page 13 of

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25. The respondent, on the other hand, supports the findings of the trial court, arguing that he is the undisputed registered proprietor of the suit property, having been registered on 11th December 2003. He submits that although the appellants initially occupied the land with his permission, that permission was lawfully withdrawn when he commenced proceedings before the Land Disputes Tribunal against the appellants' father and subsequently instituted the present suit for eviction. According to the respondent, once the licence was terminated, the appellants' continued occupation became unlawful and amounted to trespass. 26. The trial court considered this issue and held that: “15. Whichever way one looks at the matter, it is clear that the Plaintiff’s permission was withdrawn when he took legal action in Embu LDT No. 20 of 2002 against the Defendants’ father (who was then the registered proprietor) so that he could be registered as proprietor. It would appear that the Plaintiff succeeded in that action hence the award of the Tribunal was adopted as a decree of the court in Embu SPMCC Tribunal Case No. 3 of 2003. The filing of the instant suit is a testimony that the Defendants’ licence to remain on the suit property had been terminated. 18. The court is thus of the opinion that the” Plaintiff has demonstrated an interference with his proprietary rights with respect to the suit property. Under Section 24 of the Land Registration Act, 2012, the registration of a person shall vest in him absolute ownership of the land in question together with all rights and privileges belonging or appurtenant thereto. Those rights are not to be altered or defeated except as may be provided for by law.” Page 14 of

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27. Trespass is defined under section 3(1) of the Trespass Act, Cap 294 as being where: “Any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof…” 28. It is also defined by Black’s Law Dictionary in the following terms: “One who has committed trespass; one who unlawfully intrudes upon another’s land and forcibly takes another’s persona; property”. 29. In our present case, the record reveals that the respondent produced documentary evidence demonstrating that he became the registered proprietor of the suit property on 11 th December 2003 following the adoption of the award in Embu Land Disputes Tribunal Case No. 20 of 2002. Significantly, the appellants themselves produced the green card which confirmed that registration. 30. The respondent equally acknowledged that the appellants initially occupied the land with his permission, although he maintained that such permission was subsequently withdrawn upon the conclusion of the Tribunal proceedings and the institution of legal proceedings for their eviction. 31. Section 24(a) of the Land Registration Act provides that registration confers upon a proprietor absolute ownership together with all rights and privileges appurtenant thereto. Page 15 of

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32. This Court in Naibei v Lumbasi & another [2025] KECA 1783 (KLR) emphatically stated that: “Under Section 24 of the Land Registration Act, the registered proprietor of land holds absolute ownership, subject only to overriding interests recognized by law. As already indicated, the respondents were registered as proprietors on 25th November 2008, and their title was not impeached on grounds of fraud or illegality. This means that, until and unless successfully challenged, their registration conferred indefeasible ownership rights, including the right to evict trespassers such as the appellant. The law protects registered proprietors from unlawful intrusions, particularly where adverse possession is not established, like in this case, or where individuals such as the appellant attempt to exploit political instability to appropriate the suit property.” 33. In the present case, the respondent was registered as proprietor on 11th December 2003 as indicated in the title deed on record. Therefore, in the absence of an established legal or equitable interest overriding the respondent's registered title, we hold that the trial court properly characterized the appellants' continued occupation as trespass. 34. Turning to the second issue, the appellants contend that the evidence established that they had occupied one-half of the suit property openly, peacefully and continuously since 1972. According to the appellants, the respondent voluntarily allocated them one-half of the land in recognition of their late mother, Mary Wanjiku's, beneficial interest in the property, which had allegedly been purchased by their maternal grandmother, Esther Njambi. They argue that the respondent Page 16 of

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consequently held the Page 17 of

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suit property in trust for himself and the family of his late sister. The appellants therefore, urge that the trial court failed to appreciate that the evidence established both a customary or family trust, and a claim for adverse possession. 35. On the other hand, the respondent urges that although the appellants occupied the suit property from 1972, such occupation was by his permission and, therefore, could not amount to adverse possession. The respondent further contends that time for purposes of limitation only began to run when he became the registered proprietor on 11 th December 2003 and ceased when he instituted the present suit on 22nd March 2005. Consequently, the statutory period of twelve years required to establish adverse possession was not attained. 36. On this, the trial court had this to say: “22. The copy of the land register produced by the Defendants indicate that the Plaintiff was registered as proprietor of the suit property on 11th December 2003. Prior to that registration, it was the Defendants’ father, Nyaga Kabutu, who was the registered proprietor between 3rd November 1965 and 10th December 2003. The material on record indicates that the Plaintiff filed suit on 22nd March 2005 to assert his property rights. As was held in the case of Githu V Ndeete (supra) time stops running for purposes of limitation of actions once the proprietor takes legal proceedings for recovery of his land. It was not demonstrated by the Defendants that time could have run against their own father who was registered as proprietor in 1965. The Defendants must have entered the suit property with the blessings of their Page 18 of

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father. The court is of the opinion that the Defendants Page 19 of

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were simply living there as family members hence time could not run against their own father. 23. The court is thus of the opinion that time for purposes of limitation of actions only started running on 11th December 2003 when their father ceased being the registered owner of the suit property. The court is further of the opinion that time continued running against the Plaintiff until 22nd March 2005 when the Plaintiff asserted his property rights by filing the instant suit for eviction. The effective period for purposes of limitation was therefore a period of about one year and 3 months only which falls short of the statutory minimum of 12 years.” 37. The law governing adverse possession is found in section 38 (1) of the Limitation of Actions Act. It provides that: “(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.” 38. There are various cases that describe what constitutes adverse possession. In Lewa v Mwagandi [2015] KECA 532 (KLR) this Court observed that: “Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it, and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by Page 20 of

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default or inaction of the owner. The essential prerequisites Page 21 of

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being that the possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity, and in extent to show that the possession is adverse to the title owner.” 39. This Court has on various occasions discussed the elements to be proved in adverse possession. In Samuel Kihamba v Mary Mbaisi [2015] eKLR the Court observed that: “Strictly, for one to succeed in a claim for adverse possession one 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 land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin phraseology, nec vim, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land. See Eliva Nyongesa Lusenaka & another 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.” 40. The evidence on record leaves no doubt that the appellants have occupied the suit property since approximately 1972. Indeed, both PW1 and DW1 agreed on that fact. DW1 expressly testified that the respondent invited their family onto the land and personally showed them where to construct their houses and cultivate crops. That admission is significant because Page 22 of

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occupation founded upon the owner's permission cannot ordinarily be Page 23 of

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adverse as held in Lewa and Samuel Kihamba supra. Additionally, the respondent became the registered proprietor on 11th December 2003 and asserted his ownership by filing the present suit on 22nd March 2005. Hence the proceedings interrupted the running of time. We therefore find that the appellants did not prove adverse possession. 41. The appellants equally submit that the respondent held the suit property in trust for their late mother's family because the land had allegedly been acquired by their maternal grandmother. They argue that the respondent acknowledged that beneficial interest by allocating them one-half of the land. 42. Black’s Law Dictionary , 9th Edition; defines a trust as: “The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).” 43. The Supreme Court in Kiebia v M’lintari & another [2018] KESC 22 (KLR) pronounced itself on customary trust as follows: “Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of Page 24 of

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such other members, whether or not they Page 25 of

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are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are: 1. The land in question was before registration, family, clan or group land, 2. The claimant belongs to such family, clan, or group, 3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous. 4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances. 5. The claim is directed against the registered proprietor who is a member of the family, clan or group.” 44. Recently this Court reiterated in Kamau v Mbugua [2026] KECA 956 (KLR) as follows: “The recent 2025 authority from this Court is entirely consistent with that position. In Githae v Mwai & 2 Others (2025) KECA 1563 (KLR) , this Court emphasized that customary trust is not presumed merely because parties are related or because one party is in occupation. Rather, the nature of the land, the history of its acquisition, the intention of the family or clan, and the quality of the evidence tendered are determinative. The Court stated, in substance, that the categories of customary trust are not closed, but each case must be determined on its own merits and on the strength of the evidence, because not every claim to a right over family land qualifies as customary trust.” Page 26 of

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45. In the present case, although the appellants asserted that the land was purchased by their maternal grandmother and that their late mother was entitled to one-half share, the record does not disclose documentary evidence to prove the purchase, or the alleged beneficial entitlement, or the circumstances under which the respondent became a trustee. Neither was there evidence that the Tribunal or the trial court was invited to determine ownership based on trust. As such, this ground is alien and it must fail. 46. Turning to the third issue, the appellants submit that the trial Judge erred in law by declining to declare the proceedings and award in Embu Land Disputes Tribunal Case No. 20 of 2002 a nullity. They contend that the Land Disputes Tribunal acted without jurisdiction when it purported to determine ownership and title to the suit land, matters which fell outside the jurisdiction conferred upon the Tribunal by section 3(1) of the Land Disputes Tribunals Act (repealed). Consequently, they submit that the award, the decree adopting it, and the respondent's subsequent registration as proprietor were nullities incapable of conferring a valid title. Further that they were not parties to the Tribunal proceedings, despite being persons in occupation of the suit property and whose interests would inevitably be affected by the award. 47. The respondent, on his part supports the finding of the trial Judge and submits that the Tribunal proceedings cannot now be impeached in these proceedings. He argues that the Tribunal proceedings were instituted against Nyaga Kabutu, the Page 27 of

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appellants' father, who was then, the registered proprietor of the suit property. Since the appellants were neither registered proprietors nor persons with registrable interests in the land, there was no legal requirement that they be joined in those proceedings. The respondent further submits that neither Nyaga Kabutu nor any other party challenged the Tribunal award through the statutory appeal process, or by judicial review. Counsel argued that the award thereby acquired the force of a court decree and remains valid until set aside by a competent court. 48. The trial court considered this issue and held as follows: “24. …….The material on record indicates that the Plaintiff was seeking to reclaim the suit property from the Defendants’ father who was then the registered proprietor. The Defendants were not the registered owners of the suit property hence could not be joined in those proceedings. 25. The court has further noted that the award of the Tribunal was never challenged by any of the concerned parties, that is, the Plaintiff herein and the Defendants’ father, Nyaga Kabutu. It is doubtful if the Defendants can competently challenge that award after the passage of 17 years without a grant of letters of administration to the estate of their late father. Be that as it may, the court is persuaded by the Court of Appeal decision in Florence Nyaboke V Mogere Amosi Ombui & 2 Others [2014] eKLR that since the Tribunal’s award was never challenged in the manner prescribed by law, and it was consequently adopted as a decree of the court it remains a valid decision. It was acted upon and perfected in 2003 hence cannot be challenged through the back door.” Page 28 of

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49. The question of jurisdiction is undoubtedly fundamental. As stated in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 Lillian S, proceedings conducted without jurisdiction are ordinarily void. The Court stated that: “6. A question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter was then obliged to decide the issue right away on the material before it. Jurisdiction was everything. Without it, a court had no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction. 7. A question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It was immaterial whether the evidence was scanty or limited. Scanty or limited facts constituted the evidence before the court. A party who failed to question the jurisdiction of a court may not be heard to raise the issue after the matter was heard and determined. There were no grounds as to why a question of jurisdiction could not be raised during the proceedings. As soon as that was done, the court should hear and dispose of that issue without further ado.” (Emphasis added) 50. In the present case, the appellant challenged the validity of the Tribunal award in these proceedings nearly two decades after it was adopted as a judgment of the court and acted upon. The record demonstrates that the award was never Page 29 of

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appealed against, Page 30 of

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reviewed or quashed by way of Judicial Review. Neither the registered proprietor Nyaga Kabutu, nor his estate sought to invalidate the award through the statutory mechanisms available under the Land Disputes Tribunals Act. 51. We, therefore, find that the trial Judge cannot be faulted for holding that the Tribunal award and the respondent's title remained valid for purposes of the present proceedings. The appellants' remedy, if any, lay in directly challenging the adoption proceedings or the resulting decree, through the procedures provided by law. Therefore, this ground of appeal is found to be unmeritorious. 52. In the end, we find that this appeal has no merit, and we dismiss it. And this being a matter between family members, we make no orders as to costs. It is so ordered. Dated and delivered at Nyeri this 25th Day of September, 2026. S. ole KANTAI .......................... ... JUDGE OF APPEAL L. ACHODE ……………………… JUDGE OF APPEAL KATWA KIGEN ......................... .. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 31 of

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