Loice Achieng Otieno v Edwina Akeyo Anyong'a (Suing as the administrator of the estate of Walter Anyong'a Ombogo, Deceased)

(Risper). The respondent averred that Ombogo took possession of the said portion of land soon after it was purchased and cultivated it until his death in 2005, after which the respondent continued to occupy and use the same. The respondent averred that without considering Ombogo’s possession and interest in the said portion of land, Risper and her daughter Alice Waga Akeng’o fraudulently subdivided the original parcel, sold and transferred the portion thereof, which was sold to Ombogo by Were and which was registered as Kisumu/Kapuonja/2659 (the suit property) to the appellant. The respondent averred that the Appellant thereafter sold the suit property to the 2nd Defendant in the lower court suit, Boaz Otieno Nyunya. In her further amended plaint, the respondent sought judgment against the appellant and the 2 nd Defendant in the lower court suit for: a permanent injunction restraining them from alienating, subdividing, transferring or in any manner disposing of the suit property; a declaration that the respondent was the legal and rightful owner of the suit property by virtue of her adverse possession of the same for over 35 years; and an order directing the Land Registrar to rectify the ELCA NO. E096 OF 2024 JUDGMENT Page 2

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register by cancelling the registration of the 2 nd Defendant in the lower court suit as the owner of the suit property and substituting it with the name of the respondent. The appellant filed a defence and a counterclaim in which she denied the respondent’s claim in its entirety. The appellant averred that she lawfully purchased the suit property from Risper, who was the registered owner thereof, before she transferred the same to the 2 nd Defendant in the lower court suit. The appellant denied that the sale of the suit property to her and subsequently to the 2nd Defendant in the lower court suit was fraudulent. The appellant averred that the respondent’s claim to the suit property was extinguished under the Limitation of Actions Act, Chapter 22 Laws of Kenya, and that the court lacked the jurisdiction to determine the suit, which was an adverse possession claim. In her counterclaim, the appellant sought an injunction restraining the respondent from encroaching or trespassing on the suit property and from being aggressive and hostile to the appellant; a declaration that she was the lawful owner of the suit property and was entitled to transfer the same to the 2 nd Defendant in the lower court suit; and general damages for trespass. ELCA NO. E096 OF 2024 JUDGMENT Page 3

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The 2nd Defendant in the lower court suit filed a defence and counterclaim dated 10th May 2021. The 2nd Defendant in the lower court suit denied the respondent’s claim in its entirety. The 2nd Defendant in the lower court suit averred that he was an innocent purchaser of the suit property for value from the appellant. The 2nd Defendant in the lower court suit further averred that the respondent’s claim over the suit property was extinguished under the Limitation of Actions Act, Chapter 22 Laws of Kenya. The 2nd Defendant in the lower court suit further averred that the court lacked jurisdiction to determine the respondent’s suit, which was based on adverse possession. In his counterclaim, the 2nd Defendant in the lower court suit sought judgment against the respondent for: a declaration that he was the bona fide owner of the suit property and a permanent injunction restraining the respondent from interfering with his ownership and use of the property. At the trial, the respondent testified and called two witnesses, while the appellant testified and did not call a witness. The 2 nd Defendant in the lower court suit did not give evidence at trial. After the close of evidence, the parties made written closing submissions. ELCA NO. E096 OF 2024 JUDGMENT Page 4

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In its judgment delivered on 28 th October 2024, the trial court framed three issues for determination, namely, whether the appellant passed a good title to the 2 nd Defendant in the lower court suit; whether the 2nd Defendant in the lower court suit was a bona fide purchaser of the suit property without notice of the defect in the appellant’s title; and whether the respondent was entitled to the reliefs sought. The trial court found that when the appellant sold the suit property to the 2 nd Defendant in the lower court suit, the respondent’s lower court suit, initially filed in the Environment and Land Court in 2013 before it was transferred to the lower court, was pending determination. The court found that the transaction was a corrupt scheme to defeat the respondent’s claim. The trial court found that the appellant was aware of the respondent’s claim to the suit property but still went ahead to purchase the property from Risper; that Ombogo purchased the suit property in 1992 and paid the full purchase price for the property by 8 th August 1988; that the respondent had cultivated the suit property openly since 1982; that the appellant was not an innocent purchaser of the suit property; and that when he acquired the same from Risper the title of the property was ELCA NO. E096 OF 2024 JUDGMENT Page 5

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encumberd by a constructive trust in favour of Ombogo. The trial court held that, since the appellant purchased an encumbered interest in the suit property, he could not pass a good title to the 2nd Defendant in the lower court suit. The trial court found that the appellant and the 2 nd Defendant in the lower court suit held the suit property in trust for Ombogo. The trial court dismissed the appellant and the 2 nd Defendant in the lower court suit’s counterclaims and entered judgment for the respondent against the appellant and the 2 nd Defendant in the lower court suit for: a permanent injunction restraining the appellant and the 2 nd Defendant in the lower court suit or anyone claiming under them from alienating, subdividing, transferring or in any manner dispossessing the respondent of the suit property; a declaration that the 2 nd Defendant in the lower court suit held the suit property in trust for the estate of Walter Anyong’a Ombogo; an order for the rectification of the register of the suit property by cancellation of the registration of the 2nd Defendant in the lower court suit as the owner of the property and substitution thereof with Walter Anyong’a Ombogo; and the costs of the suit to be paid by the appellant. ELCA NO. E096 OF 2024 JUDGMENT Page 6

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The appellant was dissatisfied with the lower court's judgment and decree and preferred this appeal. In her further amended memorandum of appeal dated 7th August 2025, the appellant challenged the decision of the trial court on 11 grounds, namely, that the trial court erred in fact and law by failing to find that if there was a contract of sale of land between Ombogo and Were, the same had lapsed by effluxion of time and was unenforceable; that the trial court erred in law and fact in failing to consider that the agreement of sale of land between Were and Ombogo was incomplete and as such incapable of being performed; that the trial court erred in fact and law in cancelling the title held by the 2 nd Defendant in the lower court suit while he was an innocent purchaser of the suit property without notice of any defect in the title; that the trial court erred in failing to consider the pleadings of the 2 nd Defendant in the lower court suit who was a bona fide purchaser of the suit property without notice; that the trial court erred in law and fact in relying on the testimonies of the respondent’s witnesses while they did not witness the execution of the agreement of sale between Ombogo and Were; that the trial court erred in law and fact in disregarding ELCA NO. E096 OF 2024 JUDGMENT Page 7

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the fact that the 2nd Defendant in the lower court suit was an indefeasible owner of the suit property; that the trial court erred in law and fact in disregarding the fact that fraud was not pleaded against the 2nd Defendant in the lower court suit; that the trial court erred in fact and law in finding that the land that was in dispute was the same as the land that was sold by the appellant to the 2nd Defendant in the lower court suit; that the trial court erred in law and fact in failing to appreciate the import of sections 4(a) and 7 of the Limitation of Actions Act, and to find that the contract on which the suit was based and the suit were time barred; and that the trial court’s decision was wrong and unfair. The appellant prayed that the findings and orders of the trial court be set aside, and that the court be pleased to grant any other order it deems fit in the circumstances of the case. The appellant also prayed for the costs of the suit. The appeal was heard by way of written submissions. The appellant filed submissions dated 1st September 2025, while the 1st respondent filed submissions dated 14th October 2025. In her submissions, the appellant reiterated her grounds of appeal and urged the court to allow the appeal. In her submissions in ELCA NO. E096 OF 2024 JUDGMENT Page 8

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reply, the respondent submitted that she was entitled to specific performance of the agreement between Were and Ombogo, as Ombogo had fulfilled his part of the agreement, and that the agreement had no completion date and time was not made of the essence. The respondent submitted further that she was entitled to specific performance on account of adverse possession of the property. The respondent further submitted that the 2nd Defendant in the lower court suit was not an innocent purchaser of the suit property without notice of the defect in the appellant’s title. The respondent prayed that the appeal be dismissed. I have considered the pleadings and proceedings of the lower court, the court's judgment, the grounds of appeal advanced by the appellant, and the parties' submissions. As this is a first appeal, the court must reconsider and re-evaluate the evidence on record and draw its own conclusions on the lower court’s findings on the issues that were raised for determination before it. In Gitobu Imanyara & 2 Others v. Attorney General [2016] KECA 557 (KLR), the Court of Appeal stated as follows on the mandate of the court on a first appeal: ELCA NO. E096 OF 2024 JUDGMENT Page 9

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“...this Court is not bound necessarily to accept the findings of fact by the court below and that 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 though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. See Selle and Another v. Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. v. Brown [1970] E.A.L. As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters –vs- Sunday Post Ltd [1958] EA 424. In its own words: “Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.”” In Kenya Ports Authority v. Kuston (Kenya) Limited [2009] 2EA 212, the Court of Appeal stated that: ELCA NO. E096 OF 2024 JUDGMENT Page 10

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“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.” It is settled that, as it reconsiders and re-evaluates the evidence afresh, the first appellate court will not interfere with the trial court’s findings of fact unless those findings were not based on evidence at all, were based on a misapprehension of the evidence, or were reached on wrong principles. See Peter v. Sunday Post Ltd. [1958] E.A 424 and Makube v. Nyamuro [1983] KLR 403. In my view, the appellant’s eleven grounds of appeal can be summarised into one ground, namely, whether the trial court erred in finding that the respondent had proved her case against the appellant and was therefore entitled to the orders granted by the court. From the further amended plaint dated 11th February 2021, it is difficult to identify the respondent’s cause of action with clarity. It is unclear whether the suit ELCA NO. E096 OF 2024 JUDGMENT Page 11

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sought specific performance of the 1992 contract between Ombogo and Were, or title to the suit property by adverse possession. I agree with the appellant that the suit was time-barred if it sought to enforce the agreement of sale dated 26 th November 1982; therefore, the respondent could not obtain an order for specific performance. The agreement could also not be enforced for another reason. It could only be enforced against the administrator of the estate of Were, who was not made a party to the suit. From the reliefs sought, I would conclude that the respondent’s claim was based on adverse possession, although this was not expressly pleaded in the body of the further amended plaint. The respondent sought, “A declaration that the Plaintiff is the legal and rightful owner of L.R No. Kisumu/Kapuonja/ 2659 by virtue of adverse possession of over 35 years.” The lower court lacked jurisdiction to determine an adverse possession claim. This was made clear by the Court of Appeal in the case of Sugawara v. Kiruti (Sued in her Capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others (Civil Appeal E141 of 2022) ELCA NO. E096 OF 2024 JUDGMENT Page 12

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[2024] KECA 1417 (KLR) (11 October 2024) (Judgment), in which the court stated as follows: “44. The controversial question of jurisdiction of the Magistrates’ Courts in claims for adverse possession emanates from sections 37 and 38 of the Limitation of Actions Act where it is specically provided that such claims are to be heard by the “High Court”. 45. In particular, section 38 of the Limitation of Actions Act provides: “ (1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, 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. (2) … (3) … (4) The proprietor, the applicant and any other person interested may determination of apply any to the question High Court arising for the under this section. (5) …” ELCA NO. E096 OF 2024 JUDGMENT Page 13

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46. In other words, reference is to the “High Court” as the court to which such cases are heard, and given the dictates of the Constitution set out above, this should be construed to mean the “Environment and Land Court”, as being the court donated with jurisdiction to hear and determine matters pertaining to adverse possession of land. The effect of this interpretation is that, it is only the Environment and Land Court established under Article 162(2) (b) that is mandated to hear these cases. So that, notwithstanding the expansion of the jurisdiction of environment and land usage to Magistrates Courts, it is distinctive that under section 9 (a) of the Magistrates Courts Act, various matters are specified for determination, but claims for adverse possession are not included. 47. In the case of Republic vs Karisa Chengo & 2 Others [2017] eKLR this Court held that: “ A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 48. It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. ELCA NO. E096 OF 2024 JUDGMENT Page 14

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So that, in view of the express provisions of the law, a strict interpretation of section 38 would mean that the hearing and determination of such matters is specifically limited to the Environment and Land Court to the exclusion of the Magistrates’ Court.” The lower court did not deal with the respondent’s adverse possession claim. As I have stated, it had no jurisdiction to do so. The trial court held that the appellant and the 2 nd Defendant in the lower court suit held the suit property in trust for the respondent. It was on that basis that the orders that are the subject of this appeal were granted. It is unclear to this Court how the issue of constructive trust arose. On this issue, the trial court stated, in part, as follows: “36. The land agreement(sic) was produced as exhibit 1. This shows that the purchase price was fully paid by 8 th August 1988. In any event, there is sufficient evidence that makes it more likely than not, that the deceased Walter Anyonga bought the suit land in 1982, and since then his wife, the plaintiff herein, has been farming the said land, in other words, she has been in possession of the suit land. She has done so openly, and adversely to the interests of Rispa Mula Were. 37. Therefore the first defendant was not an innocent purchaser without notice. The title she obtained from ELCA NO. E096 OF 2024 JUDGMENT Page 15

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Rispa Mula Were constructive(sic) in was encumbered favour of with Walter a trust Anyonga. Consequently, she could not pass a good title to the second defendant. 38. This court therefore declares that the first defendant held the land in trust for Walter Anyong’a and proceeds to call the trust into court and determines it in favour of the deceased Walter Anyong’a Ombogo.” (Underlining added) I agree with the lower court that where land is sold, the purchase price is paid in full, the purchaser is put in possession, but the land is not transferred to the purchaser by the seller, the court may impose a constructive trust upon the seller to restrain dispossession of the buyer of the property and to compel transfer. However, the trust must be pleaded and proved. In this case, it was neither pleaded nor proved. It is my finding that the trial court had no jurisdiction to determine the respondent’s suit as pleaded and that the orders granted by the trial court had no basis on the pleadings. The suit, which sought an order that the respondent had acquired the suit property by adverse possession, should have been struck out. The trial court therefore erred in cancelling the title that was ELCA NO. E096 OF 2024 JUDGMENT Page 16

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held by the 2nd Defendant in the lower court suit and directing that the property be registered in the name of Ombogo. As for the counterclaims by the appellant and the 2 nd Defendant in the lower court suit, I am of the view that the 2 nd Defendant's counterclaim was properly dismissed. The 2 nd Defendant in the lower court suit did not tender evidence at trial in support of his claim. In other words, he did not prosecute the counterclaim. For the 1st Defendant, I am of the view that she proved she was the registered owner of the suit property and, in that capacity, was entitled to transfer the property to the 2 nd Defendant subject to any encumbrance on the title. She was entitled to a declaration to that effect. She was, however, not entitled to the other reliefs sought, as she had transferred the suit property to the 2nd Defendant in the lower court suit. In conclusion, I find merit in the appeal and make the following orders: 1. The judgment of the lower court delivered on 28 th October 2024 is set aside. 2. The respondent’s suit in the lower court is struck out for want of jurisdiction. ELCA NO. E096 OF 2024 JUDGMENT Page 17

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3. Judgment is entered for the Appellant on her counterclaim against the respondent for a declaration that the Appellant was the legal owner of the land parcel, Title No. Kisumu/Kapuonja/2659 and as such was entitled to transfer the same to the 2 nd Defendant in the lower court suit subject to any duty or obligation to which she was subject as a trustee. 4. Each party shall bear its costs of the lower court suit and the appeal. Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this 28th day of September 2026 E.K.WABWOTO JUDGE Judgment delivered virtually through Microsoft Teams Video Platform in the presence of: Lumumba for the Appellant N/A for the Respondent Joanne Omondi-Court Assistant ELCA NO. E096 OF 2024 JUDGMENT Page 18

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