Njoroge v Njenga & 4 others (Civil Appeal E063 of 2024) [2026] KEELC 3981 (KLR)

2. The Appellant, being dissatisfied with both the findings of liability and the reliefs awarded, lodged the present appeal. In his Memorandum of Appeal dated 10th July 2024 the Appellant raises several grounds to wit: 1. THAT the learned magistrate erred in law and in fact by failing to appreciate the evidence adduced during the hearing and arriving at a decision which is not supported by or is against the weight of the evidence. 2. THAT the learned magistrate erred in disregarding its overriding objective and need to dispense substantive and not technical justice. 3. THAT the learned magistrate erred in disregarding the evidence that the specific land in dispute is plot no. 15 also known as Ruiru/Ruiru East Block 2/11175 and not the defendants being plot no. 2 also known as Ruiru/Ruiru East Block 2/11162, both excised from Ruiru/Ruiru East Block 2/5153 yet concluded that the appellant is not the rightful owner of plot no. 15 also known as Ruiru/Ruiru East Block 2/11175. 4. THAT the learned magistrate erred in ignoring the fact that the plaintiff was the rightful owner of plot no. 15 as per the sale agreement adduced by the appellant marked Q on the mutation form also known as Ruiru/Ruiru East Block 2/11175. 5. THAT the learned magistrate erred in ignoring the fact that the mutation form was very clear on each parties land. The respondents land being plot No. 2 as per the ownership certificate adduced by the respondent which definitely translated to plot marked B which translated to as Ruiru/Ruiru East Block 2/11162 when the sub divisions were registered. THIKA ELCA E063 OF 2025 (JUDGMENT) Page 2

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6. THAT the learned magistrate did err by concluding that the appellant is not the rightful owner of the said land. 7. THAT the learned magistrate erred in disregarding the evidence by the plaintiff and making a conclusion that the plaintiff did not prove through documentation and evidence that he is the rightful owner of the suit property yet the plaintiff availed the sale agreement, original title deed (in the names of the vendor dated 20th March 2013), duly signed transfer forms (by the vendor) and consent to transfer of the suit property in favour of the plaintiff issued by the vendor. 8. THAT the learned magistrate erred in finding that the defendants did not trespass on the plaintiff’s land yet the defendants acquired their original title deed on 16 th November 2015 way after the plaintiff was in occupation and possession of the said land since 26th September 2008, when vacant possession was given immediately at the signing of the sale agreement and payment made in full. 9. THAT the learned magistrate did err by failing to realize the defendants were acting in malice, it’s clear the plaintiff holds an original title deed in the names of the vendor dated 20 th March 2013, thus how the 1st defendant acquired another tittle deed in 2015 while the vendor’s title was still in existence is questionable. 10. THAT the learned magistrate failed to appreciate the Equity Maxim which provided that where there are two equal equities, the first in time shall prevail, the magistrate was faced with two original title deed plaintiff’s dated 20th March 2013 and the defendants dated 16 th November 2015 yet conclude the plaintiff did not have proper documentation for the suit property. THIKA ELCA E063 OF 2025 (JUDGMENT) Page 3

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11. THAT the learned magistrate erred in finding that the defendants did not trespass on the plaintiff’s property yet the plaintiff has been in occupation and possession on the suit property since 2008 when he bought it. 12. THAT the learned magistrate erred in finding the plaintiff was not the rightful owner of the suit property through documentation and evidence, if the plaintiff was therefore not a purchaser as per court reasoning, then the claim for adverse possession is valid as an alternative claim. 13. THAT the learned magistrate erred in finding a claim for adverse possession cannot be made by a purchaser, whereas the law is, that time for purposes of adverse possession begins to run on the date of payment of the las installment of the purchase price. 3. In essence, notwithstanding the breadth of the grounds, the appeal turns on three questions: whether the learned magistrate misapprehended or failed to properly evaluate the evidence, particularly as to the identity of the suit property and the Appellant’s claim to ownership and possession, thereby failing to do substantive justice; whether the Court erred in law in its treatment of the competing titles, the allegation of trespass, and the applicable equitable principles; and whether it further erred in rejecting the Appellant’s alternative claim for adverse possession. Background 4. This appeal springs from a contest over land, a subject that too often travels the unhappy road from concord to conflict. At its root THIKA ELCA E063 OF 2025 (JUDGMENT) Page 4

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lies a common vendor, from whom both the Appellant and the Respondents claim to have purchased their respective parcels. What began as parallel transactions, each clothed in the language of agreement, has since unraveled into competing claims of ownership, now brought before this Court for resolution. 5. At the centre of the controversy is all that parcel of land known as Ruiru/Ruiru East Block 2/11175, which is said to have been excised from Ruiru/Ruiru East Block 2/5153. 6. The Appellant herein instituted the suit by a plaint dated 31st January 2023 seeking, inter alia a declaration of ownership over Ruiru/Ruiru East Block 2/11175 together with consequential orders against the Respondents arising from the alleged interference with his claimed rights over the suit property. 7. The Appellant’s position is that the dispute traces back to a sale agreement dated 26th September 2008 pursuant to which he allegedly purchased the suit property from one Rosemary Ngonyo Wamuyu for valuable consideration. He maintains that the transaction was completed, full payment was made, and that possession was delivered to him in 2008 from which time he has remained in occupation. He further relies on supporting documentation, including the vendor’s title deed dated 20th March 2013, transfer instruments, consent to transfer, and a mutation form identifying the suit property as Plot No. 15. THIKA ELCA E063 OF 2025 (JUDGMENT) Page 5

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8. As the dispute crystallised, the Appellant also advanced an alternative claim, contending that his long, open, and uninterrupted possession of the suit property since 2008 had matured into title by adverse possession. 9. The 1st 2nd and 3rd Respondents contest this narrative. They contended that Plot number 15 does not translate to Ruiru/Ruiru East Block 2/11175 and deny that the Appellant is the rightful owner of the suit property. In particular, the Respondents reject the Appellant’s claim to ownership of the suit property, contending that any uncertainty as to its identity or boundaries stems not from competing entitlements, but from misdescription in the mutation records. 10. The Respondents further state that the Appellant ought, in the circumstances, to have engaged the services of a surveyor to properly ascertain and identify the extent and location of his claimed parcel. The Respondent’s claim is founded on a title deed issued on 16th November 2015 and further assert that they have been in possession of the suit property since the purchased it for valuable consideration in 2005. 11. It was upon this factual matrix that the matter proceeded to trial before the Honourable magistrate in Ruiru MCELC/E021/2023, who, after hearing the parties and evaluating the evidence, delivered judgment on 27th June 2024 finding in favour of the Respondents on the question of ownership of Ruiru/Ruiru East Block 2/11175 THIKA ELCA E063 OF 2025 (JUDGMENT) Page 6

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dismissing the Appellant’s claim. Aggrieved by that decision, the Appellant now brings this appeal. 12. Pursuant to directions of this Court, the appeal was canvassed by way of written submissions, which this Court has carefully considered. Issues for Determination 13. Having considered the grounds of appeal as set out in the Memorandum of Appeal, together with the record of the trial Court and the rival submissions of counsel, and the relevant authorities, the Court is of the view that the appeal raises the following principal issues for determination: i. Whether the learned magistrate erred in finding that the Appellant had not proved ownership of the suit property. ii. Whether the learned magistrate erred in finding that the Appellant had not established a claim for adverse possession. iii. Who should bear the costs Analysis and Determination 14. This being a first appeal, this Court is enjoined to reconsider and reevaluate the evidence on record and draw its own independent conclusions, as stated in Selle v Associated Motor Boat Co. Ltd THIKA ELCA E063 OF 2025 (JUDGMENT) Page 7

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[1968] EA 123. The Court is not bound by the findings of the trial Court but must subject the entire evidence to fresh and exhaustive scrutiny. 15. At the same time, due allowance must be made for the fact that the trial Court had the advantage of seeing and hearing the witnesses testify, and therefore had the opportunity to assess their demeanour, an advantage not available to this Court on appeal, as restated in Kenya Ports Authority v 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” 16. The Court now turns to the issues arising. 17. The issue of whether the learned magistrate erred in finding that the Appellant had not proved ownership of the suit property depends on whether the evidence on record, taken as a whole, supported the findings reached on ownership and identity of the suit property. 18. It is trite that in civil cases, the legal burden of proof rests upon the party who asserts the existence of a fact. Section 107 of the THIKA ELCA E063 OF 2025 (JUDGMENT) Page 8

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Evidence Act CAP 80 Laws of Kenya places that burden upon the person who would fail if no evidence were adduced. Equally, Sections 109 and 112 of the Evidence Act require a party to prove facts especially within their knowledge. 19. In disputes relating to ownership of land, documentary evidence assumes central importance, particularly where competing claims arise from subdivision and transfer instruments. However, such documents must be evaluated holistically and not in isolation. 20. The Appellant’s case before the trial Court was founded on documentary evidence. He relied on a sale agreement dated 26th September 2008 which he contended evidenced a valid and completed transaction for the purchase of the suit property from the Vendor, one Rosemary Ngonyo Wamuyu. 21. The Respondents, for their part, also relied on a sale agreement dated 28th April 2005 between the 1st Respondent and the same Rosemary Ngonyo Wamuyu, which they contended marked the genesis of their proprietary claim to the suit property. It was the Respondents’ position that the said agreement, read together with the subsequent instruments culminating in the issuance of their title deed dated 16th November 2015, demonstrated a lawful and uninterrupted chain of acquisition. The Respondents maintained that their documentary evidence not only predated or ran parallel to the Appellant’s asserted interest but also culminated in registration, THIKA ELCA E063 OF 2025 (JUDGMENT) Page 9

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thereby conferring upon them a superior and indefeasible title in law. 22. The legal framework governing transactions in land is well settled. Section 3(3) of the Law of Contract Act provides that: “(3) No suit shall be brought upon a contract for the disposition of an interest in land unless— (a) the contract upon which the suit is founded— (i) is in writing; (ii) is signed by all the parties thereto; and (b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party: Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.” 23. Section 3(3) of the Law of Contract Act prescribes the essential formal requirements for contracts relating to the disposition of an interest in land thereby forming the foundational basis upon which claims arising from land transactions must be assessed. 24. Both the Appellant and the Respondents rely on sale agreements to ground their respective claims overs the suit property. On their face, both agreements meet the requirements of Section 3(3) of the Law THIKA ELCA E063 OF 2025 (JUDGMENT) Page 10

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of Contract Act, being in writing, signed, and attested, and are therefore capable of giving rise to enforceable interests in land. 25. The Appellant submits that he has been in occupation of the suit land since he completed payment of the purchase price in 2008 whereas the 1st respondent alleges she has been in possession since 28th April 2005. The Respondent further places reliance on their certificate of title issued on 16th November 2015 which they contend evidences their registration as proprietors of the suit property. 26. Under Section 26(1) of the Land Registration Act, a title is to be taken as prima facie evidence that the person named therein is the absolute and indefeasible owner, subject only to the statutory exceptions. 27. That said, the title is not, of itself, conclusive proof of ownership where its validity or root is placed in issue. In that regard, this Court agrees with the learned magistrate that the certificate of title must be considered alongside the surrounding transactional history and not in isolation. 28. In the present case, the Respondents’ title is grounded in the earlier sale agreement dated 28th April 2005, in which the Vendor acknowledges receipt of the full purchase price, and culminates in registration through the title issued in 2015. THIKA ELCA E063 OF 2025 (JUDGMENT) Page 11

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29. Against that evidential backdrop, the Appellant’s claim does not attain the same degree of coherence. While the sale agreement dated 26th September 2008 is, on its face, compliant with Section 3(3) of the Law of Contract Act, it is not accompanied by a corresponding chain culminating in registration. The reliance on a Land Control Board consent dated 3rd May 2018, coming after the Respondents’ title had already issued in 2015, does little to advance the Appellant’s claim in priority. 30. Further, the assertion that the Appellant is in possession of the vendor’s original title dated 20th March 2013, without more, does not displace the legal effect of a registered title held by the Respondents. 31. Learned counsel for the Appellant submits that the plot no. 15(Q) which was purchased by the Appellant was registered to Ruiru/Ruiru East Block 2/11175 whereas the plot no. 2(B) purchased by the Respondent was registered as Ruiru/Ruiru East Block 2/11162. In essence, the Appellant contends is that the two titles, though born of a common source, were separately defined and ought not to have been conflated. 32. While the mutation reflects a subdivision into several resultant parcels, the matter does not turn on the mere multiplicity of plots, but on their ultimate registration. In that regard, the Respondents’ parcel is shown to have been registered as Ruiru/Ruiru East Block THIKA ELCA E063 OF 2025 (JUDGMENT) Page 12

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2/11175 a position firmly borne out by the title issued in 2015. The Appellant’s asserted distinction, though premised on the mutation, is not matched by proof of a corresponding registration in his favour nor was it supported by any expert or survey evidence to delineate the alleged distinction on the ground. 33. The Appellant’s reliance on the vendor’s title dated 20th March 2013 is not supported by evidence of transfer or registration in his name. In the absence of such proof, possession of a prior title remains legally sterile, incapable of conferring ownership. 34. By contrast, the Respondents’ position rests on their title, issued in 16th November 2015 which is the culmination of a prior transaction evidenced by the agreement of 2005, and reflects a completed chain of acquisition recognised in law. 35. The Appellant’s documentary chain, taken as a whole, falls short of demonstrating a perfected interest capable of overriding or impeaching the Respondents’ registered proprietorship. 36. Accordingly, and on a balance of probabilities, the Respondents’ claim, anchored in a prior agreement that acknowledges full consideration and brought to legal fruition by a duly issued title, carries the greater weight and must prevail. 37. For completeness, the Court turns to the Appellant’s alternative plea for adverse possession. THIKA ELCA E063 OF 2025 (JUDGMENT) Page 13

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38. Section 7 of the Limitation of Actions Act provides that: “An action may not be brought by any person to recover land after the end of 12 years from the date which the right of action accrued to him or if it first accrued to some person through whom he claims to that person.” 39. Essentially, this is provision quiets title in favour of long, uninterrupted, and hostile possession, and extinguishes the remedy of the true owner who sleeps upon his rights. 40. The Court of Appeal in Mtana Lewa vs. Kahindi Ngala Mwamgandi [2005] eKLR explained the concept of adverse possession as follows: “Adverse Possession is essentially a situation where a person takes possession of land, 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 12 years.” 41. From the evidence placed before the Court, it is clear that the suit land is a sub-division of Ruiru/Ruiru East Block 2/5153 from which the respective parcels claimed by both parties are said to have emerged. 42. The Appellant’s case on adverse possession is founded on the assertion that he took possession of the suit property pursuant to the sale agreement dated 26th September 2008, upon payment of THIKA ELCA E063 OF 2025 (JUDGMENT) Page 14

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the purchase price, and that he has remained in continuous occupation thereafter. On his own case, therefore, time is said to have begun running from 2008, when he allegedly entered into possession. 43. However, the legal character of that possession is the first and decisive inquiry. Possession that is referable to a sale agreement is, in its inception, permissive and not adverse. It is possession rooted in contract, awaiting completion of transfer, and not possession hostile to the title of the vendor or subsequent registered proprietor. 44. The law is clear that mere assertion of long occupation is insufficient. In Kazungu & another v Omar [2024] KECA 412 (KLR), the Court of Appeal stated: “…it does not suffice to simply aver that the claimant was in possession for more than 12 years. The claimant must adduce evidence of the steps taken with a view to asserting rights which must be shown to be adverse to the title of the true owner. Where the claimant’s entry into the land was as a licensee, there must be evidence of the point at which the licence was terminated and the continued possession became adverse to that of the owner.” 45. Measured against that standard, the Appellant’s narrative reveals no such evidential turning point. The record discloses entry founded upon contract, not conquest; possession born of consent, not defiance. No act is demonstrated which signals the shedding of that permissive origin or the open assertion of a title hostile to the true THIKA ELCA E063 OF 2025 (JUDGMENT) Page 15

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owner. The occupation, however long it may have endured, remains tethered to its contractual genesis. 46. Even assuming, for argument’s sake, that time began to run from the date of the Appellant’s entry in 2008, the record shows that the Respondents’ title was issued in 2015, and there is no evidence of any clear, unequivocal, and continuous assertion of ownership adverse to them thereafter for the requisite statutory period. 47. The Appellant’s reliance on a Land Control Board consent dated 3rd May 2018 only reinforces the existence of an ongoing transactional framework, rather than a settled posture of hostility. That circumstance sits uneasily with the standard articulated in Kazungu (Supra), which requires adverse possession to be continuous, exclusive, and demonstrably adverse throughout the statutory period. 48. In the absence of proof of that critical rupture, the law does not permit the transformation of a purchaser into an adverse possessor by mere effluxion of time. Possession, without hostility, is inert in the eyes of the doctrine. It neither displaces title nor extinguishes it. 49. Accordingly, the Appellant’s claim for adverse possession fails for want of proof of the essential elements known to law. The occupation disclosed, being rooted in a contractual purchase, never shed its permissive origin to assume the stern character of hostility. Nor is there evidence of a clear, continuous, and unequivocal THIKA ELCA E063 OF 2025 (JUDGMENT) Page 16

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assertion of adverse rights for the statutory period of twelve years. After reviewing the evidence, the learned magistrate cannot therefore be faulted for rejecting the claim. 50. In view of the foregoing, I am not persuaded that the learned magistrate took into account matters that were extraneous to the evidence, or failed to consider material facts that were properly before the Court. Neither has it been demonstrated that the learned magistrate misapprehended the effect of the evidence, nor that he proceeded on any wrong principle in arriving at his findings on ownership and adverse possession. On the contrary, the record reveals a careful evaluation of the competing claims and a conclusion that is firmly anchored in the evidence and the law. 51. In the result, the appeal is devoid of merit and is hereby dismissed with costs to the Respondents. It is so Ordered. Dated, Signed and Delivered, at Thika this 30th day of April 2026 …………………….. J. M. ONYANGO JUDGE THIKA ELCA E063 OF 2025 (JUDGMENT) Page 17

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