Allan Makhino v Christopher B. Aleke Dondo

appellant in respect Kakamega/Nzoia/965 and of land dismissed parcel the No. appellant’s counterclaim for lack of merit. Background 2. The suit was commenced by a plaint dated 20 th November 2020. The plaintiff (the respondent herein) claimed ownership of parcel No. Kakamega/Nzoia/965 (the suit property) and sought orders of eviction and a permanent injunction against the defendant (the appellant herein). He also sought damages for trespass, costs and interest on the suit. He stated that he was the registered proprietor of the suit property, having inherited the same from his father, John Nakhulo Dondo (Deceased), following the conclusion of succession proceedings and the subdivision of the mother title, parcel No. Kakamega/Nzoia/10/63. He stated further that in the year 2012, the defendant, without his consent, entered the suit property and occupied the same, thereby committing trespass. 2

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3. In a defence and counterclaim dated 16th December 2020, the defendant denied the plaintiff’s claim and stated that the plaintiff’s inheritance was illegal, null and void, as the estate was subject to an overriding interest in favour of the defendant. The defendant pleaded that his deceased father and his family had been in possession of the original parcel No. Kakamega/Nzoia/10/163, now known as Kakamega/Nzoia/965, 1966, and he since that individually and exclusively took possession of the suit property in 1998 and had remained in occupation thereof to date. 4. In his counterclaim, the defendant sought orders for the dismissal of the plaintiff’s suit; a declaration that the estate of the plaintiff’s late father did not have a good title to the suit property, the same having been extinguished by adverse possession upon the lapse of 12 years during which the defendant was in possession; an order for the execution of the transfer; a declaration that the defendant be registered as the proprietor of the 3

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suit property pursuant to Section 38 of the Limitation of Actions Act; and costs of the suit. 5. In his reply to the defence and counterclaim dated 19 th July 2021, the plaintiff reiterated that he was the absolute registered owner of the suit property. He denied that the defendant’s family had been in possession of the suit property or that the defendant entered the land in 1998. He stated that he acquired legal title following the conclusion of the succession proceedings, to which the defendant did not object in order to ascertain or establish his rights and interests, if any, over the suit property. The plaintiff further denied the allegation that the defendant had been using the land for 22 years and prayed that the counterclaim be dismissed with costs. 6. The suit was heard by way of viva voce evidence. The plaintiff presented four witnesses, while the defence presented two witnesses. Plaintiff’s evidence 4

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7. PW1 was Christopher B. Aleke Dondo, the plaintiff. He adopted his witness statement as his evidence in chief. He testified that the defendant did not object to the succession proceedings and that, during his father’s lifetime, the defendant had never made any claim against his estate. He stated that he started actively using the suit property in 2012 but delayed filing the suit due to his mother’s illness. He further testified that his father had previously sued the defendant’s father over the suit property, although the case was not concluded. He produced the official search for parcel No. Kakamega/Nzoia/965, the green card for the mother parcel No. Kakamega/Nzoia/163, the Certificate of Confirmation of Grant issued in respect of the estate of John Nakhulo Dondo, and the title deed for the suit property. 8. On cross-examination, PW1 stated that his father, John Nakhulo Dondo, had sued the defendant’s father, Enock Nakhino, in a case concerning the same property and that the prayers sought included eviction, although he did not know when the case was filed. He stated that the 5

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defendant’s family had been living on the land since the filing of that case. He further testified that the succession proceedings commenced in 2018. On reexamination, he reiterated that the defendant started using the land in 2012 and stated that his mother had been reluctant to pursue the claim. 9. PW2, Okwaro Kadima Henry Wamukoya, and PW3, Romanus Agomba Nakhulo, adopted their respective witness statements as their evidence. On cross- examination, they stated that the defendant’s family entered the land in the 1970s, which was when the dispute began. 10. PW4, Simiyu Siakama, a former Chief of Sinoko Location, testified that he knew the parties. He confirmed that the original parcel was registered in the name of the plaintiff’s father and that, following the successful conclusion of the succession proceedings, the land was subdivided among the beneficiaries, with the suit property being allocated to the plaintiff. He stated that the defendant had refused to allow the plaintiff access to the land. On cross-examination, however, he 6

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stated that the plaintiff’s family had not utilized the land since adjudication was undertaken in 1965 and that the defendant’s family had been utilizing the suit property since then. This marked the close of the plaintiff’s case. Defence evidence 11. DW1 was Allan Makhino Cherure, the defendant. He testified that he took exclusive possession of the suit property in 1998. He produced photographs of the structures agreement, on the and suit an property, agreement an employment relating to the construction of greenhouses in 1998. 12. On cross-examination, DW1 stated that he had taken the photographs himself. He conceded that there had previously been a court case between their fathers concerning the suit property, although he did not know the title number. He further stated that he did not know the name of the person registered as proprietor of the land he occupied and was unaware of any succession proceedings. He testified that the land had originally been utilized by his father and that he took possession 7

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thereof in 1998 with his father’s permission. He further stated that he was currently undertaking succession proceedings in respect of his father’s estate and only became aware of the adjudication issues when the present suit was filed. 13. DW2 was Kissinger Mbati Ingolo. He adopted his witness statement as his evidence. On cross- examination, he stated that he was born in 1976 and had not lived near the suit property. He testified that he was employed on the land in 1999 and confirmed that the employment agreement did not identify the title number of the land in question. 14. Upon consideration of the pleadings, evidence and submissions, the trial court found that the defendant had failed to prove his claim for adverse possession and that he had trespassed onto the plaintiff’s land. The court consequently found that the plaintiff had proved his case and proceeded to allow the plaintiff’s claim. Aggrieved by the decision, the appellant filed the instant appeal by a Memorandum of Appeal dated 2 nd December 2024, citing six grounds of appeal as follows: 8

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a) The trial Magistrate erred in law and fact when she found that it was clear that the defendant’s possession herein was not interrupted contrary to the evidence on record. b) The trial Magistrate erred in law and fact when she documents therefore took not into consideration produced occasioning a in evidence miscarriage of justice. c) The trial Magistrate erred in law and fact when she found that the defendant and his family forcefully got into the plaintiff’s land despite clear evidence on record that the plaintiff and his family have never been in occupation of the land since 1966. d) The trial Magistrate erred in law and fact when she found that the defendant had trespassed on the plaintiff’s land despite sufficient evidence that at the time the plaintiff got title to the suit land, the defendant was already in occupation. e) The trial Magistrate erred in law and fact when she failed to appreciate the evidence presented in the pleadings and failed to 9

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apply the relevant applicable legal principles to the evidence on record. f) The trial Magistrate erred in law and fact when she awarded general damages for trespass without a basis and any justification as to how the amount was arrived at. 15. The appellant sought orders that the judgment of the lower court be set aside and substituted with a judgment dismissing the respondent’s case against the appellant and allowing the counterclaim, with costs to the appellant. 16. The appeal was canvassed by way of written submissions. The record submissions dated 6th contains the February 2026 appellant’s and the respondents’ submissions dated 27th February 2026. Appellant’s submissions 17. The appellant submitted that, being a first appeal, this Court is required to re-evaluate, re-assess and reanalyse the evidence on record and determine whether the conclusions reached by the trial court ought to 10

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stand. Reliance was placed on Kenya Ports Authority v Kuston (Kenya) Limited (2009) 2 EA 212 for the applicable principles governing a first appeal. The appellant contended that the trial court erred in finding that his possession of the suit property had been interrupted, arguing that there was no evidence of any dispute concerning his occupation of the land. It was submitted that the only dispute referred to in the evidence was between the parties’ fathers. The appellant further contended that the respondent had admitted that he had never sought to have the appellant vacate the land and that the respondent and his family had never been in occupation of the suit property. 18.The appellant submitted that his counterclaim was founded on adverse possession and that he had been in open, exclusive, peaceful and continuous possession of the suit property for more than twelve years. He relied on Sections 7 and 17 of the Limitation of Actions Act, which provide for the limitation of actions for recovery of land and the extinguishment of title upon expiry of the prescribed limitation period. The appellant relied on 11

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Ndatho v Itumo & 2 Others [2002] 2 KLR 637 and Daniel Kimani Ruchine & Others v Swift, Rutherford Co. Ltd & Another [1977] eKLR for the principles that adverse possession must be adequate, continuous, exclusive, open and uninterrupted. He further submitted that possession must be exercised nec vi, nec clam, nec precario—without force, secrecy or permission—and that the registered owner must have been dispossessed for the limitation period to run. 19.The appellant contended that he took exclusive and open possession of the suit property in 1998 and that his possession thereafter became adverse to the title of the respondent’s father, who was the original registered proprietor. He submitted that the evidence established that he remained in continuous and uninterrupted possession from 1998, without any attempt by the respondent or his family to evict him until the filing of the suit. Relying on Ndatho v Itumo (supra), the appellant submitted that time would only be stopped where the owner asserted his right through legal proceedings or an effective entry onto the land. He 12

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therefore argued that, having established possession for more than twelve years, even before the demise of the respondent’s father, his claim for adverse possession had accrued and the title to the suit property was no longer available for transmission through succession. He consequently urged the Court to allow the appeal and grant the orders sought in his counterclaim, with costs. Respondents submissions 20. In response to the grounds of the appeal as raised in the memorandum of appeal, and in discussing each ground, on first issue, the respondent submitted that the appellant’s possession of the suit property was not uninterrupted. He pointed to the appellant’s own pleading that, although his family had occupied the original parcel since 1966, he individually took exclusive possession in 1998. This was contrasted with the respondent’s position that the appellant entered the suit property in 2012. The respondent further submitted that the suit was brought against the appellant in his personal capacity and not as a representative of his family or his late father’s estate. He contended that the 13

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appellant did not raise any objection during the succession proceedings undertaken in 2018 on the basis of an overriding or beneficial interest in the property. 21. The respondent submitted that the appellant’s alleged adverse possession was interrupted by the succession proceedings, transmission and registration of the suit property in the respondent’s name, as well as the demands made to the appellant to vacate the land. He contended that, prior to succession, the mother parcel was registered in the name of a deceased person and that the appellant’s occupation amounted to intermeddling with the estate. He further submitted that the appellant had acknowledged a longstanding dispute between their respective fathers concerning the land, including Kakamega SPM Civil Suit No. 142 of 1987. The respondent therefore maintained that the appellant had failed to establish continuous and uninterrupted possession for the requisite period. 22.On the second issue, the respondent submitted that the appellant had failed to identify the documents which he alleged the trial court had improperly considered despite 14

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their not having been produced in evidence. He contended that the documents filed in court were available for reference by the court and the parties and left the issue to the court. 23.On the third issue, the respondent submitted that the appellant’s entry onto the land while the registered owner was deceased was more properly characterized as intermeddling with the estate. He contended that the longstanding dispute between the parties’ fathers, together with the subsequent succession proceedings, transmission and registration of the suit property in his name, superseded the appellant’s alleged occupation dating back to 1966. Relying on Section 24(a) of the Land Registration Act, he submitted that registration conferred upon him absolute rights over the suit property. 24.On the fourth issue, the respondent submitted that the appellant was properly found to be a trespasser because the respondent was the registered proprietor of the suit property, while the appellant had no title or other legal basis for his continued occupation. He further pointed 15

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out that the appellant had neither challenged the respondent’s title during the succession proceedings nor invoked Section 26 of the Land Registration Act to challenge the title before the trial court. 25.On the fifth issue, the respondent submitted that the trial Magistrate properly considered the pleadings and evidence and applied the relevant legal principles. In particular, the court correctly requirements of adverse possession, registration, interruption of considered the effect possession the of through proceedings concerning the land, and the effect of the demise of the previous registered proprietor followed by transmission of the property to the new proprietor. 26. On general damages for trespass, the respondent submitted that the trial Magistrate properly found that the appellant had intruded onto the respondent’s land and was consequently entitled to an award of damages for trespass. submitted On that the the final issue, appellant’s the claim respondent for adverse possession was improperly instituted. He contended that such a claim could only be commenced by way of an 16

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originating summons and not through a plaint, counterclaim or any other mode. Reliance was placed on Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR and Mate Gitabi v Jane Kabubu Muga alias Jane Kaburu Muga & 3 Others [2017] eKLR. 27. The respondent further relied on Sections 25 and 26 of the Land Registration Act concerning the rights of a registered proprietor and the evidentiary status of a certificate of title. He also relied on Eliud Njoroge Gachiri v Stephen Kamau Ng’ang’a [2018] eKLR on the meaning of trespass, submitting that the appellant’s occupation of the suit property without the consent of the registered proprietor constituted trespass. In conclusion, the respondent submitted that the appeal was devoid of merit and urged the court to uphold the judgment of the lower court. Analysis and determination 28. The court has carefully considered the appeal, the entire trial court record 17 and the parties’ rival

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submissions, the following issues arise for wrong in determination: i) Whether the trial court was dismissing the appellant’s predicated on the possession over doctrine land counterclaim of adverse parcel No. Kakamega/Nzoia/965; ii) Whether the trial court erred in finding that the appellant was a trespasser on the suit property; iii) Whether the trial court was justified in awarding general damages for trespass in the sum of Kshs. 300, 000/=. 29. The role of this Court as a first appellate court is to rehear the dispute. It therefore ought to re-assess, reevaluate and re-analyze the facts and the law and make its own independent conclusions bearing in mind that it had no benefit of seeing and hearing witnesses and make due allowance for that. This position was stated in Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123. 18

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30. Similarly, in Kamia & another v King’oo & 11 others [2024] KECA 1669 (KLR). the Court of Appeal stated that the first appellate court's responsibility is: “to re-appraise the evidence that was tendered before the trial court and reach… independent conclusions on the facts and on the law.” 31. In the instant case, the suit property is registered in the name of the respondent by dint of succession from his father the late John Nakhulo alias John Nakhulo Dondo. The respondent sought eviction, injunction and damages against the appellant, while the appellant sought the suit property on the basis of adverse possession. 32. A claim for adverse possession is anchored on provisions of the Limitation of Actions Act. 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 on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person.” 33. Section 13 provides as follows; 19

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“(1) A right of action to recover land does not accrue unless the property is in possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under Section 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land. (2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land.” 34.Section 17 states as follows; “Subject to Section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished.” 20

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35. Most importantly and of critical importance to this case is section 38 (1) which provides as follows; “Where a person entitled by claims adverse to have possession become to land registered under any of the Acts cited in Section 37 of the Act, or property 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.” 36. Therefore, a trespasser who has been in exclusive and open possession of another person’s land, as of right without the owner’s permission, for a continuous and uninterrupted period of 12 years, may apply to the Environment and Land Court to be registered as owner of such land, under the doctrine of adverse possession. 37. Jurisdiction is everything. Before a court embarks on resolving a dispute, it must first be satisfied that it has the requisite jurisdiction to hear and determine such dispute, whether or not that question has been raised by 21

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the parties in the dispute. Jurisdiction is the power of the court to hear and determine an issue or a suit. 38. In the case of Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1, the court stated as follows; “Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings.” 39. The jurisdiction of a court flows from the Constitution or statute or both and a court cannot arrogate itself jurisdiction it does not have and neither can the parties by consent confer jurisdiction on a court where none exists. 40. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court of Kenya 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 22

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conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.” 41. On 11th October 2024, the Court of Appeal in the case of Sugawara v Kiritu (Sued in her capacity as the administratrix of the estate of Mutarakwa Kiritu Lepaso alias Mutarakwa Kiroti Leposo and in her own capacity ) & 3 Others (Civil Appeal E141 of 2022 [2024] KECA 1417 (KLR) (11 October 2024) (Judgment) held that a Magistrates Court has no jurisdiction to hear and determine a claim based on adverse possession and that such claims should be heard by the Environment and Land Court. In the instant matter, the trial court delivered its judgment on 27th November 2024. 23

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42. In view of the provisions of section 38 of the Law of Limitation of Actions Act as well as the decision of the Court of Appeal in Sugawara v Kiritu (supra), it is clear that jurisdiction to hear and determine claims based on adverse possession is vested in the Environment and Land Court. That being the case, the impugned judgment in so far as the appellant’s claim for adverse possession is concerned, was made without jurisdiction. The trial court therefore erred in determining the merits of the appellant’s claim for adverse possession. It ought to have struck out the appellant’s claim for want of jurisdiction. 43. On whether the respondent proved his claim, the respondent stated that he was the registered proprietor of the suit property and that the appellant trespassed thereon in 2012. In defence, the appellant stated that the transaction of the respondent’s inheritance of the suit property from his father was illegal, null and void because the appellant has an overriding interest thereon. The appellant maintained that the suit property belonged to his late father Enock Makhino who owned 24

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an adjacent title being Kakamega/Nzoia/10/173 and that at the time of allocation, the respondent’s father’s land parcel Kakamega/Nzoia/10/163 comprised of a portion of 10 acres which belonged to the appellant’s father. He emphasized that the 10 acres being the suit property were wrongly included in the appellant’s father’s title due to an error in survey done in 1970. 44. Section 107 of the Evidence Act places the burden of proof of a claim on the plaintiff. The respondent produced a search certificate for the suit property showing that the suit property was registered in his name on 30th July 2020. The respondent obtained registration of the suit property in his name upon lawful succession process. 45. Section 24(a) of the Land Registration Act provides that registration of a person as proprietor of land vests in that person absolute ownership of the land, together with all rights and privileges appurtenant thereto. Section 24(b) similarly confers the leasehold interest upon registration of a proprietor of a lease. 25

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46. Section 25 of the Act further protects the rights of a registered proprietor by providing that such rights, whether acquired through first registration, subsequent acquisition, or an order of the court, cannot be defeated except as provided by the Act. The proprietor holds the land together with its privileges and appurtenances, subject only to registered encumbrances and interests recognized under section 28, as well as any applicable trustee obligations. 47. Section 26 provides that a certificate of title issued upon registration or transfer is prima facie evidence that the person named therein is the absolute and indefeasible proprietor of the land. The title may only be challenged on the grounds of fraud or misrepresentation to which the proprietor is proved to have been a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. 48. Therefore, registration of land vests in the proprietor thereof absolute and indefeasible rights 26

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unless there is proof that such registration was obtained through fraud, misrepresentation, illegality, want of procedure or corruption. 49. In the case of Dina Management Limited v County Government of Mombasa & 5 Others (Petition 8 (010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment), the Supreme court of Kenya held that a title obtained unlawfully cannot confer lawful ownership. 50. The respondent having demonstrated registration of the suit property in his name, for the appellant to impeach the respondent’s title, it was upon him to show that the said registration did not meet the threshold set out in section 26 of the Land Registration Act. In view of the appellant’s assertion that in 1970 during allocation, there was an error in the survey process leading to a wrongful inclusion of the suit property in the respondent’s father’s title No. Kakamega/Nzoia/10/163, when the same properly belonged to the appellant’s father; by dint of section 109 of the Evidence Act, the 27

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evidential burden shifted to the appellant to demonstrate the said allegations. 51. In the instant case, there was no evidence by the appellant that the suit property belonged to his late father and that during allocation, the same was wrongly and erroneously added to the respondent’s father’s title during survey. Therefore, I find and hold that the appellant not did prove the respondent or his predecessor in title obtained registration unlawfully. 52. I am therefore satisfied that the respondent is the lawful proprietor of the suit property. 53. As the respondent is the lawful owner of the suit property, the appellant has not shown any basis or justification to continue to remain on the suit property and is therefore a trespasser and should vacate and an injunction issued as prayed. 54. Regarding whether or not the trial court was right in awarding the sum of Kshs 300, 000/= being damages for trespass, it is trite that trespass is actionable per se without proof of actual damage. Besides, an award of 28

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damages is a result of exercise of discretion. This court will not ordinarily interfere with the exercise of judicial discretion of the lower court, unless it is demonstrated that the lower court considered irrelevant matters or failed to consider relevant matters or the award was plainly wrong (See Shah v Mbogo [1968] EA. 93 at page 96). The suit property is 4 Hectares. The respondent’s ownership began in 2020. The judgment was entered in 2024. The damages awarded by the trial court were Kshs. 300, 000/=. The trial court considered the decision in the case of Philip Ayaya v Chrispinus Ngayo [2014] e KLR in arriving at its findings. There is nothing to show that the trial court considered irrelevant matters or failed to consider relevant matters in arriving at the sum of Kshs. 300, 000/=, and the same cannot be said to be too high as to show that the trial court wrongly exercised its discretion. In the premises, I find no justification to interfere with the award of Khs. 300, 000/= being damages for trespass. I therefore, find and hold that the respondent proved his case against the 29

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appellant and deserved the orders sought in the plaint dated 20th November 2020. 55. Ultimately, the findings by the trial court in favour of the respondent to the extent that the respondent had proved his claim against the appellant and the grant of the prayers sought including eviction, injunction and the award of Kshs. 300, 000/= being damages for trespass are hereby upheld. I however set aside the trial court’s finding that the appellant (defendant) did not prove his claim of adverse possession and substitute it with a finding that the trial court had no jurisdiction to hear and determine the appellant’s claim for adverse possession and therefore, the appellant’s counterclaim filed before the lower court, is hereby struck out with costs for want of jurisdiction. 56. Ultimately, I hereby set aside the lower court judgment, and substitute it with the following orders; a) The appellant’s counterclaim is hereby struck out with costs for want of jurisdiction. b) Judgment is hereby entered for the respondent against the appellant as follows; 30

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i. The appellant together with his family, servants, agents and or relatives shall vacate land parcel No. Kakamega/Nzoia/965 within 90 days of this judgment. In default, eviction orders to issue. ii. An order is hereby issued that the appellant is not entitled to enter upon, remain on or use land parcel No. Kakamega/Nzoia/965. iii. A permanent injunction is hereby issued restraining himself, his the appellant, servants, whether agents, and by or relatives from entering, remaining on or using land parcel No. Kakamega/Nzoi/965. For avoidance of doubt, this order shall take effect after 90 days of this judgment. iv. Damages for trespass are awarded to the respondent in the sum of Kshs. 300, 000/= v. The costs of the suit before the lower court and interest thereon are awarded to the respondent. 57. In view of the conclusions made above, I order that each party shall bear its own costs of the appeal. 58. It is so ordered. 31

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DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN MICROSOFT COURT/VIRTUALLY TEAMS VIDEO THROUGH CONFERENCING PLATFORM THIS 23RD DAY OF SEPEMBER 2026 A. NYUKURI JUDGE In the presence of; Ms Wilunda for the respondent No appearance for the appellant Court Assistant- Delphine 32

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