Meya & another v Nengane

3. Aggrieved by the said decision, the Appellants preferred the instant appeal. The Appellants’ Memorandum of Appeal raised six grounds of appeal, which can be distilled into the following four broad issues for determination: a. Whether the learned trial Judge erred in law and fact in upholding the validity of the sale agreement dated 16th October 1999 and/or failing to nd that it was null and void ab initio due to lack of capacity and/or intermeddling? b. Whether the learned trial Judge erred in her application of the doctrine of adverse possession, specically regarding the computation of time and the nature of the Respondent’s possession (open, uninterrupted and exclusive)? c. Whether the learned trial Judge erred in cancelling the 2nd Appellant’s title, who is alleged to be a bona de purchaser for value without notice? d. Whether the trial Judge properly analysed the evidence adduced and arrived at a correct conclusion? 4. At the hearing of the appeal, the Appellants were represented by Learned Counsel Ms Rauto, while Learned Counsel Mr Amasakha represented the Respondent. 5. Ms Rauto submitted that the sale agreement dated 16th October 1999 between the 1st Appellant and the Respondent was void ab initio because the registered owner, Mareba Emali, was deceased at the time of the transaction. Counsel argued that the 1st Appellant, being the widow, lacked the capacity to sell the suit property as she was not the conrmed administrator of the estate at the material time. She relied on the Estate of Barasa Kanenje Manya (Deceased) [2015] eKLR to argue that such a transaction amounts to intermeddling with a deceased’s estate and is unlawful. She further argued that adverse possession cannot run against a dead person as the estate lacks the capacity to bring an action to recover land until succession is nalised. 6. On the issue of adverse possession, counsel submitted that the Respondent’s possession was not adverse as it was with the permission of the 1st Appellant, initially as a lessee/licensee. She contended that the Respondent did not purchase the suit property but leased a portion of 1.8 acres. She argued that even if one were to compute time from when the 1st Appellant acquired the grant of letters of administration in the year 2003, the statutory period of 12 years had not lapsed by the time the suit was led. 7. Counsel further argued that the possession was not uninterrupted, citing letters written on 17th May 2001, 14th September 2004, 3rd April 2009, and 20th September 2011, which purportedly challenged the Respondent’s stay on the suit property. Finally, she argued that the 2nd Appellant was a bona de purchaser for value who acquired the suit property in the year 2008 without notice of the Respondent’s claim. 8. In opposing the appeal, Mr Amasakha submitted that the validity of the 1999 agreement was secondary to the claim of adverse possession. Counsel relied on the case of Kimayi v Kemei & 3 others [2024] KEELC 4246 (KLR) for the proposition that even a sale made before probate (hence void) does not prevent adverse possession if the purchaser has been in possession for over 12 years. He argued that the Respondent entered the land in the year 1999 and has remained there continuously to date. Furthermore, that the letters cited by the Appellants did not interrupt the limitation period as they were not legal assertions of title or physical re-entry but mere demands. Counsel further argued that the 2nd Appellant was not a bona de purchaser as the Respondent was in open and notorious occupation at the time of the purchase, putting the 2nd Appellant on constructive notice. He contended that the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2049/eng@2026-06-19 2

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2nd Appellant only came into the picture in the year 2013, well after the 12-year period had lapsed in the year 2011. 9. This being a rst appeal, our duty is to re-evaluate the evidence on record and arrive at our own conclusions, bearing in mind that we did not have the benet of seeing the witnesses testify as held in the case Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123. 10. Upon perusal of the record and considering both written and oral submissions by the parties herein, we set out the following issues for consideration: a. Whether the trial Judge erred in upholding the transaction of 1999. b. Whether the Respondent proved the ingredients of adverse possession. 11. On whether the trial Judge erred in upholding the transaction of 1999, the Appellants argue that the 1st Appellant had no capacity to sell the suit property as she was not the administrator of her deceased husband’s estate. This argument is predicated on Section 45 of the Law of Succession Act, which prohibits intermeddling with a deceased's estate. 12. However, the Respondent’s claim is rooted in the doctrine of adverse possession, a statutory remedy under Section 7 of the Limitation of Actions Act. Adverse possession is a factual claim that operates independently of the validity of the underlying transaction. As was held in Kimayi v Kemei & 3 others [supra] even if the initial sale was void for lack of a grant of probate, it does not prevent adverse possession if the occupier has been in uninterrupted possession for 12 years. Once the 12 years lapse, the original owner's right to recover the land is extinguished by operation of law, regardless of the nature of the initial entry. 13. Therefore, even if we were to nd that the 1st Appellant lacked capacity to sell the suit property in the year 1999, the Respondent’s possession from that date would still be relevant for the calculation of the limitation period. In fact, if the transaction was void, the Respondent entered as a trespasser, which is a hostile entry that perfectly supports a claim for adverse possession. 14. On whether the Respondent proved the ingredients of adverse possession, the elements are that the possession must be open, notorious, exclusive, continuous, and hostile to the title of the owner for a statutory period of 12 years. In regard to when possession began, the trial court found that the Respondent took possession in the year 1999. This nding is supported by the sale agreement dated 16th October 1999 and the Respondent’s testimony. The Appellants argue that the Respondent entered the land as a licensee and that possession was therefore permissive. The trial court, however, analysed the evidence and found that the transaction was a sale, not a lease. Even if we were to accept the Appellants’ argument that it was a lease, possession that was initially permissive can become adverse if the permission is revoked or if the possessor asserts a right of ownership hostile to the owner. 15. From the record, the Respondent has remained on the land since 1999. He constructed a homestead, planted trees, and cultivated the land. The Appellants argue that the possession was interrupted by letters written in the years 2001, 2004, 2009, and 2011. We have considered the submissions on this issue. A mere letter of demand or notice to vacate does not constitute an eective assertion of title that interrupts the running of the limitation time under Section 7 of the Limitation of Actions Act. As was held in Wambugu v Njuguna [1983] KLR 172, a registered owner must take eective legal action or physical re-entry to stop the limitation period. The letters produced by the Appellants do not amount to legal action or physical re-entry. Therefore, time continued to run uninterrupted. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2049/eng@2026-06-19 3

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16. The period between 1999, when the Respondent entered the land, and 2011, when the 12 years lapsed, was not interrupted. The Respondent led the Originating Summons in the year 2013. The Respondent’s possession was open and notorious; the Appellants admitted knowledge of his occupation. The Respondent’s possession was also exclusive; he occupied the portion of 1.8 acres as his own. The Appellants’ claim that the 2nd Appellant moved onto the land in the year 2008 does not negate the Respondent’s exclusive possession of the portion he was claiming. In any event, the trial court found the Appellants’ evidence regarding this aspect to be contradictory and untruthful. 17. In respect to the 2nd Appellant, William Eronda, the evidence suggests that he acquired the suit property from the 1st Appellant in the year 2008. The Respondent, however, contended that the 2nd Appellant only came into the picture in the year 2013. Regardless of the precise date, the position of the 2nd Appellant is untenable. This is because adverse possession runs against the title to the land, not merely against the individual registered owner. This Court has recently armed, in Isabella Mbinya Kweyu vs. Lillian Khavere Wanyonyi [2024] KECA 59 (KLR), that a change of ownership does not reset or interrupt the period of adverse possession. The Respondent's possession, which commenced in 1999 against the 1st Appellant's title, continued uninterrupted. When the 2nd Appellant stepped into the shoes of the 1st Appellant, he took the suit property subject to the existing burden of the Respondent's adverse possession. He cannot, therefore, claim a fresh limitation period. 18. For a purchaser to be bona de, they must act without notice of any defect in the title. The Respondent was in open and notorious occupation of the suit land since 1999. Any prudent purchaser conducting a search and visiting the suit property would have discovered the Respondent’s occupation. The 2nd Appellant cannot claim to be a purchaser without notice when the Respondent’s possession was so apparent. As held in Arthi Highway Developers Ltd v West End Butchery Ltd & 2 others [2015] eKLR, a purchaser is put on inquiry by the physical occupation of the land. 19. Further, if the 2nd Appellant purchased the suit property in 2008, as alleged by the Appellants, he did so 9 years into the Respondent's adverse possession. By the time the 12-year period lapsed in 2011, the title of the 1st Appellant was already extinguished by operation of law. The 1st Appellant could not transfer a title she no longer possessed. Therefore, the 2nd Appellant acquired no title from the 1st Appellant. 20. We have carefully re-evaluated the evidence and are satised that the trial Judge properly analysed the evidence adduced. The Respondent’s claim was anchored on a written sale Agreement dated 16th October 1999, which was witnessed by an Assistant Chief. In contrast, the 1st Appellant’s testimony was contradictory; she initially denied the sale, only to later suggest the Respondent was a lessee. The trial Judge was entitled to prefer the written agreement over this self-serving and shifting narrative. 21. In addition to the above, the Respondent’s evidence of continuous occupation since the year 1999 was corroborated by the physical developments on the land, including a homestead and planted trees, as well as his application for Land Control Board consent in the year 2009. These acts were inconsistent with the Appellants’ assertion that the Respondent was a trespasser who only entered the suit property in the year 2013. Further, the 2nd Appellant admitted purchasing the suit property in the year 2008 while fully aware of the Respondent’s occupation. In view of the above, the trial Judge rightly characterised the Appellants’ conduct as 'extreme dishonesty,' noting that when they attempted to transfer the suit property, they knew it was already in use. Based on this totality of evidence, the nding that the Respondent proved his claim on a balance of probabilities was well- founded. 22. For the foregoing reasons, we nd that the appeal lacks merit. It is hereby dismissed. The judgment and decree of the Environment and Land Court at Kakamega, dated 24th October 2018 delivered in https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2049/eng@2026-06-19 4

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ELC Case No. 171 of 2013 are hereby upheld. The Respondent shall have the costs of this appeal and of the trial in the superior court. DATED AND DELIVERED AT KAKAMEGA THIS 19TH DAY OF JUNE 2026. P. NYAMWEYA ……………………… JUDGE OF APPEAL R. NGETICH …………………………… JUDGE OF APPEAL RADIDO S. OKIYO ………………………. 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/2026/2049/eng@2026-06-19 5

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