https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1024

Rubeya & 3 others (As Trustees of Arab Central Association of Kenya, Mombasa also known as Arab Welfare Association Mombasa) v Mohammed & 2 others (Civil Appeal E115 of 2023) [2026] KECA 1024 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1024 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E115 of 2023 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 29, 2026 Between Feisal Said Rubeya 1st Appellant Abdulalim Saleh Balala 2nd Appellant Abdulnasser Balala 3rd Appellant Awadh Ahmed Jeizan 4th Appellant As Trustees of Arab Central Association of Kenya, Mombasa also known as Arab Welfare Association Mombasa and Hamisi Mohammed 1st Respondent Amir Mohammed 2nd Respondent Kazungu Kimando 3rd Respondent (Being an appeal from the Judgement of the Environment and Land Court at Mombasa (Matheka, J.) delivered on 23rd March 2023 in Mombasa ELC No. 272 of 2013 Environment & Land Case 272 of 2013 ) Judgment 1.The litigation leading up to the present appeal has its genesis in the dispute revolving around the ownership of Plot No. MN/III/83 - Mtwapa (the suit property). The appellants filed suit before the Environment and Land Court (the ELC) at Mombasa in ELC Case No. 272 of 2013. In their Amended Plaint dated 10th January 2019, the appellants, suing as the trustees of Arab Central Association of Kenya, Mombasa also known as Arab Welfare Association Mombasa (the Charitable Trust) pleaded that they were the registered owners of the suit property, and that they held a Certificate of Title registered as Number CR.4391 measuring approximately 6.26 acres. They contended that they acquired the suit property through purchase for valuable consideration from its previous registered owners. 2.The appellants were aggrieved that the respondents, who resided on nearby plots, had encroached and/or trespassed onto the suit property without any lawful consent or authority from them and, as such, their occupation was illegal and amounted to unlawful infringement of their right to property as follows:“i.Article 40 of the Constitution which guarantees citizens’ property rights.ii.Section 21(1) of the Land Registration Act, Cap 300 (‘the Act’) which stipulates that any person who defaces, removes, injures or otherwise impairs a boundary feature or any part of it without lawful authority commits an offence and is liable on conviction to imprisonment for a term not exceeding two years or to a fine not exceeding two hundred thousand shillings or to both.iii.Section 24 of the Act which spells out the interests conferred on the appellant as the registered owner of the parcel of land encroached upon.iv.Section 25 of the Act which sets out the rights of the appellant as the proprietor of the parcel of land encroached upon.” 3.The appellants averred that, as a result of the illegal, unlawful, wrongful encroachment and trespass onto the suit property by the respondents, they were denied the use and/or occupation of their property and, as a consequence, had suffered loss and damage; and that the said encroachment, trespass and construction on the suit property was illegal, unlawful and without justification. For those reasons, the appellants sought the following reliefs:“a)A declaration that the appellants are the lawful, absolute proprietors of the suit property held by Certificate of Title registered as Number CR.4391 measuring approximately 6.26 acres subject to such overriding interest as may for the time being subsist and affect the land stipulated by law.b.A declaration that the respondents have illegally, unlawfully, wrongfully and without any colour of right encroached and trespassed into the appellants’ suit property.c.An order of permanent injunction do issue to restrain the respondents by themselves, servants, workmen, agents, heirs, personal representatives or otherwise howsoever from dealing with, purporting to enter, access remain on, getting ingress into or trespassing into the suit property and/or erecting or causing to be erected any structures thereon whether temporary or permanent in nature or from in any way interfering with the appellant’s peaceful possession and enjoyment of the suit property.d.Costs of the suit.” 4.By an authority to act and pleaded on behalf of the 2nd respondent, the 1st respondent filed a home-made Statement of Defence dated 13th February 2014. He contended that, while the Certificate of Title pleaded was No. CR.4391, what the appellant annexed to its pleadings were titles to CR. 4391/1 and CR.4391/2; and that, together with the 2nd respondent, they inherited the suit property from their ancestors who lived thereon. 5.We note from the proceedings of the ELC that the 2nd respondent who was the 2nd defendant was said to be deceased. However, there is no evidence that he was substituted. 6.On his part, the 3rd respondent filed a Statement of Defence dated 20th May 2022. He averred that he was born on the suit property and lived thereon with his family without disruption from the appellants; that the appellants’ title over the suit property was extinguished by operation of law and, hence, the suit was statute barred; that the Government of Kenya had provided him with various social amenities, including water, electricity and security lighting supply, and a borehole; that there was a community library and a football ground thereon that were being used by other residents who lived therein; and that, over the years, the appellants had never used the suit property in whatever manner as claimed. He thus prayed that the appellants’ suit be dismissed with costs. 7.A group of litigants who are not part of this appeal, named as ‘necessary parties’ filed a defence dated 20th May 2021. They likewise stated that they had been continuously and uninterruptedly living on the suit property, having been born therein and established homes as early as the year 1968. They also contended that the appellants’ title to the suit property was extinguished by operation of law, and that, therefore, the suit was statute barred. 8.At the hearing, Feisal Said, PW1, a trustee of the Charitable Trust, testified on behalf of the appellants. While adopting his witness statement dated 9th March 2022, he testified that the appellants owned the suit property; that, in the year 2013, they wanted to fence off the suit property, but that, while on a visit, they noticed that a storey building had been constructed thereon; that they then realised that the respondents had encroached and/or trespassed on their property without colour of right and/or consent or authority from them; and that he did not know the respondents. In addition, he produced the documents in his List of Documents which were marked as PEXH 1 and PEXH 2. We pose here to note that we examined the record of appeal as put to us and were unable to locate both the List of Documents and the documents that were produced in evidence as such. Vide a Supplementary List of Documents dated 9th March 2022, PW1 produced in evidence a Trust Deed dated 30th March 2004 as PEXH 3. 9.Three witnesses testified for the respondents’ case. DW1, Kazungu Kimando (the 3rd respondent) testified that he was born on the suit property in the year 1967, and that he found other people already residing thereon; that some of the houses were made of mud while others were permanent; that the property was supplied with amenities, such as water, electricity, a private school, a library, a playing field, a car wash yard and a cement machine, all of which were funded by the Constituency Development Fund (CDF). DW1 testified that he owned a chicken keeping project; that the appellants had never evicted them from the suit property; and that they (the respondents and others) were already on the suit property by the time the appellants came in in the year 2013. 10.DW2, Said Lewa, corroborating the testimony of DW1, testified that he and his family lived on the suit property since 1986, and that the suit property was connected to electricity, water and security lights and other amenities, such as boreholes, a football pitch and a library. He denied that the appellants had ever lived on the suit property or ever issued a notice to him and other residents to vacate the property. 11.DW3, Makupe Gambo Nyamawi, one of the necessary parties, testified that he moved into the suit property together with his family and 5 children in the year 1990; that one of his children died and was buried thereon; that there were about 67 families who had settled on the suit property; that the appellants had not done anything in terms of development on the suit property; and that the suit property was supplied with amenities as alluded to by DW1 and DW2. 12.In a judgment delivered on 23rd March 2023, the learned Judge (Matheka, J.) conceded that the appellants had produced uncontroverted evidence that they were the registered owners of the suit property, and that they held a Certificate of Title registered as NO. CR.4391 measuring approximately 6.26 acres. However, their suit was dismissed on three fronts. First, for failing to establish their case on a balance of probabilities on the finding that there were developments on the suit property as alluded to by the respondents, namely connectivity to water, electricity, security lighting, boreholes, community library, a football ground and a private school. The learned Judge further observed the fact that some of the respondents’ kin had been buried on the suit property. For these reasons, the learned Judge wondered where the appellants had been all this time when developments were taking place only to resurface in the year 2013. 13.Secondly, and flowing from the above observation, it was the court’s considered view that the respondents had been living on the suit property for a continuous and uninterrupted period of over 12 years. 14.Thirdly, the learned Judge also concluded that the suit was statute barred by dint of Section 7 of the Limitation of Actions Act, Cap 22, for the reason that the appellants attempted to repossess and reclaim ownership of the suit property in the year 2013, while under Section 7, ‘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, it first accrued to some persons through whom he claims, to that person.’ 15.It is this decision of the learned Judge that precipitated the present appeal. By a Memorandum of Appeal dated 31st July 2023, the appellants have raised a whopping 25 grounds of appeal against the grain of Rule 88 of the Court of Appeal Rules, 2022 which enjoins appellants to concisely set out the grounds of objection to the decision being appealed against, under distinct heads, and without argument or narrative. We nonetheless have condensed them into the following 7 grounds, namely that:i.the learned Judge erred in law and in fact in failing to find that the respondents’ occupation of the suit property and/or any part of it was wrongful, unlawful, illegal and amounted to trespass without the appellants’ permission, authority and/or consent;ii.the learned Judge erred in law and in fact in finding that the appellants’ claim was brought after 12 years contrary to the provisions of Section 7 of the Limitation of Actions Act, Cap 22 and thus, statute barred without evidence on the same;iii.the learned Judge erred in law and in fact in finding that Section 9 of the Limitation of Actions Act, Cap 22 provides that a cause of action where a person holding title to land has been dispossessed of the land or property accrues on the date of the dispossession or the discontinuance;iv.the learned Judge erred in law and in fact in failing to consider the appellants’ evidence that the suit property had not been encroached upon by the respondents until the year 2013, and that the cause of action arose in 2013;v.the learned Judge erred in law and in fact in holding that the respondents had been living on the suit property continuously and uninterruptedly for a period of over 12 years despite them not tendering any evidence in support of the same;vi.the learned Judge erred in law and in fact in relying on the respondents’ statement that there existed water supply, electricity, security lighting, boreholes provided for by the Government, community library constructed by a Non-Government Organization, a private school, without documentary evidence and proof to the required standard; andvii.the learned Judge erred in law and in fact in placing reliance on the statements by the respondents instead of placing reliance on the facts, substance and weight of the evidence adduced by the appellant. 16.The appellants accordingly prayed that: the appeal be allowed with costs; the Judgment of Matheka, J. dated 23rd January 2023 be set aside; the appellant’s suit be allowed in its entirety; and that costs of the suit and of this appeal be awarded to them. 17.At the virtual hearing of this appeal on 15th December 2025, learned counsel Ms. Nafula was present for the appellants while learned counsel Mr. Wameyo was present for the respondents. Both counsel entirely relied on their respective parties’ written submissions without any oral highlights. The appellants’ submissions are dated 9th September 2025 while those of the respondents are dated 4th December 2025. 18.The appellants contended that the respondents did not produced any evidence in the form of photographs, building permits/approvals or business permits to demonstrate that there were structures and/or social amenities, such as water and power connectivity on the suit property as claimed; that there were also no corroborating documentary evidence in the form of letters from Government administrative offices showing that they had resided on the suit property from the 1960s as alleged; and that their (the appellants) evidence that the respondents were living on the fringes of the suit property in 2013 was plausible and had not been contradicted. 19.The appellants urged that, there being no evidence that the respondents had resided on the suit property for more than 12 years, the learned Judge erred in concluding that the suit property was time barred, and that she therefore misconstrued the provisions of Sections 7 and 9 of the Limitation of Actions Act; that the onus of proof of occupation by adverse possession lay with the respondents and, for this proposition, reference was made to the decision of this Court in Kuria Kiarie & 2 others vs. Sammy Magera (2018) KECA 467 (KLR). 20.The appellants submitted that, since the issue of ownership was not in contention, they were entitled to protection of their right to property as enshrined in Article 40 of the Constitution and Sections 24, 25 and 26 (sic) as was held by the ELC in the decision of Benson Mbutha Oruko vs Glady Buyuka & 2 Others (2018) KEELC 2127 (KLR) albeit that this case law was not on the appellants’ List of Authorities. The appellants thus urged us to find in their favour and allow the appeal accordingly. 21.On their part, the respondents challenged the competence of the suit based on the entity under which the appellants purported to sue, and to be the trustees thereof; that Feisal Said Rubeya, the 1st appellant, is a trustee of Arab Welfare Society Foundation Trust and one of its trustees by the name of Abdalla Omar Khamis was not a party to the suit; that the appellants did not present evidence to support the existence of Arab Central Association of Kenya, Mombasa as a Trust for which they were its registered trustees; and that, therefore, the appellants failed to prove their locus standi to file the suit as Trustees of Arab Central Association of Kenya, Mombasa. The decision of the Supreme Court in Fort Hall Bakery Supply Co. vs. Fredrick Muigai Wangoe (1959) EA 474; and of the High Court in Root Capital Incorporated vs. Tekangu Farmer Co-operative Society Ltd & Another (2016) KEHC 3735 (KLR); and Turn Key International Trade Limited vs. Sunmatt Limited (Sundip Shah) (2024) KEHC 2701 (KLR) were cited for the principle that failure to prove the existence of a company would lead to an action incapable of being maintained; and that a non-existent person cannot sue. The respondents submitted that, since no authorization was given to the 1st appellant to act on behalf of the other Trustees, the suit ought to have been treated as not properly instituted as was held by the ELC in Moses Muturi & 6 Others vs. Silas Yego & 3 Others (2016) KEELC 751 (KLR). 22.The respondents also contended that the averments in the plaint were riddled with ambiguity and contradictions against the grain and letter of Order 2 rule 3 of the Civil Procedure Rules, which requires clarity in statements of the material facts pleaded. The respondents specifically pointed to the contents of paragraph 7 where it was pleaded that they (the respondents) were residing in the neighbouring plot while, at paragraphs 8, 9, 10 and 13, it was pleaded that they were actually on the suit property and had constructed premises thereon; that, further, the appellants prayed for a declarationthat the respondents have illegally trespassed into the suit property while at the same time they sought a permanent injunction restraining the respondents from entering into the suit property; and that, in the face of such ambiguity and contractions, it was unclear as to what reliefs the appellants were actually seeking. 23.The respondents also contended that the appellants’ prayer in the Amended Plaint which sought for a prohibitory injunction was compromised by the appellants’ admission that the respondents were in possession of the suit property; that prayers (a) and (b) which sought declaratory orders were not executable as they did not interfere with the respondents’ possessory interest in the suit property as was held by the Kenindia Assurance Company Limited vs. Kipnyekei t/a Nyekwei & Company Advocates (2024) ; and this Court’s decision in ELC in KEELC 6980 (KLR) Attorney General vs. Bala (2023) KECA 117 (KLR) that a ‘declaratory orders are meant to clarify issues so as to remove legal uncertainties and doubts. A declaratory order merely proclaims the existence of a right, clarifies legal relationships, or certain set of facts’; and ‘A declaratory Judgment merely states some existing legal situation….’ respectively. 24.The respondents submitted that it is not disputed that, as at 26th January 2013, they were on the suit property and that their stay thereon was uninterrupted; that 12 years had since lapsed and no suit had been filed seeking their eviction; and that, even if the appeal were to succeed, the same would serve no purpose since a declaratory judgement is non-executable. 25.The respondents posited that the appellants did not plead when the cause of action arose and, as such, the respondents’ possessory interest in the suit property had not been extinguished; that, to the contrary, the appellants’ title was extinguished by dint of Section 17 of the Limitation of Actions Act; and that, as a consequence, their (the respondents) possessory interest overrides the appellants’ title, which became extinguished by operation of law. 26.In conclusion, and in summary, the respondents urged that the appeal ought to be dismissed on the premise that the appellants did not seek a positive order capable of execution; and for the reason that they did not prove when the cause of action arose. 27.The duty of this Court as a first appellate court was enunciated in the decision of Selle & Another vs. Associated Motor Boat Co. Ltd & Others (1968) EA 123, as to reconsider and re-evaluate the evidence on record and draw our conclusion of facts and law. In so doing, we are also required to bear in mind that we neither saw nor heard the witnesses testify for which we should give due allowance. Even then, we are cautioned that we should only depart from the findings made by the trial court if they were not based on evidence, or, if the trial court is shown to have acted on wrong principles of law as was held in Jabane vs. Olenja (1986) KECA 21 (KLR), or where the trial court’s discretion was exercised injudiciously as was held in Mbogo & another vs. Shah (1968) EA 93. 28.Furthermore, in Ng’ati Farmers’ Co-Operative Society Ltd vs. Ledidi & 15 Others (2009) KECA 424 (KLR), it was observed as follows:“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.” 29.We have considered the record of appeal, the parties’ written submissions, the cited authorities and the law. We have thus deduced that the issues that fall for determination are:i.Whether the appellant’s suit was competent.ii.Whether the appellants’ suit was statuteiii.Whether the appellants proved ownership of the suit property.iv.Whether the respondents are entitled to claim the suit property by way of adverse possession. 30.On the first issue, the respondents challenged the competency of the suit by stating that there was no proof adduced as to the existence of trustees of Arab Welfare Association of Kenya, Mombasa, being the entity which holds the title to the suit property, and that, hence, the appellants had no locus standi to file the suit. 31.At the outset, we must observe that this particular angle of argument was not subject of consideration before the trial court. The respondents filed a Notice of Preliminary Objection dated 29th November 2018 challenging the competency of the appellants’ suit, but they did not pursue it to its logical conclusion as, by consent entered by counsel of the parties on 4th December 2018, it was withdrawn. Furthermore, a perusal of the respective defences filed by the respondents and the necessary parties indicates that they did not succinctly plead the issue of the appellants’ locus standi. This can only translate to the fact that the respondents did not intend to challenge the locus standi of the appellants. It is trite and well settled law that an issue which was not canvassed before the court of first instance, cannot be brought up on appeal. 32.he issue of locus standi being an unpleaded issue, there was no expectation that the trial court would have pronounced itself on the same as was held by the predecessor of this Court in Galaxy Paints Co. Ltd. vs. Falcon Guards Limited (2000) 2 EA 385 that:“It is trite law, that issues for determination in a suit generally flow from the pleadings and the trial court may only pronounce judgment on the issues arising from the pleadings or such issue as the parties have framed for the Court’s determination. (See also Odd Jobs – vs- Mubia (1970) EA 476.”PARAGRAPH 33.Be that as it may, in Njau & 5 others vs. City Council of Nairobi (1983) KECA 56 (KLR), this Court expressly stated as follows on what is locus standi as follows:“The term locus standi means a right to appear in Court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.’’ 34.The Constitution and Rules of the Charitable Trust refers to the entity as ‘AWS Foundation Trust’ whose Trustees are named as Feisal Said Rubeya, Abdalla Omar Khamis, Abdulalim Saleh Balala, Abdulnasser Balala and Awadh Ahmed Jeizan. A juxtaposition between the names of the persons in the Trust Deed and the ones who sued in the ELC are one and the same save for the name of the Charitable Trust. In Alfred Njau (supra), this Court discussed the interplay between locus standi and cause of action as follows:“Lack of locus standi and a cause of action are two different things. Cause of action is the fact or combination of facts which give rise to a right to sue whereas locus standi is the right to appear or be heard, in court or other proceedings. To say that a person has no cause of action is not necessarily tantamount to shutting the person out of the court but to say he has no locus standi means he cannot be heard, even on whether or not he has a case worth listening to.’’ 35.Our considered view is that the mismatch between the names of the Charitable Trust did not necessarily render the suit incompetent, and that line of argument by the respondents is dismissed. 36.This drives us to consider issue number 2, which is whether the appellants' suit was time barred. At the heart of the appellants’ complaint was that the respondents encroached and/or trespassed onto the suit property without lawful consent and/or authority. The appellants contended that they got to know of this fact in the year 2013 when they visited the suit property. The learned Judge held that the suit was statute barred by dint of Section 7 of the Limitation of Actions Act which provides for actions on recovery of land as follows:An action may not be brought by any person to recover land after the end of twelve 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. 37.The act of unlawful trespass is recognized by Section 3 of the Trespass Act, No. 48 of 1962 as follows: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 shall be guilty of an offence... 38.The Black’s Law Dictionary10th Edition defines ‘continuous trespass’ as follows:A trespass in the nature of a permanent invasion on another’s rights. 39.The text book Clerk & Lindsell on Torts 16th Edition para. 23- 01 is instructive on what constitutes continuing trespass that:Every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues. 40.In considering the appeal before it on whether it was proper for the learned Judge to find that the suit was statute barred under similar circumstances, this Court in Nganga vs. Gachiri [2025] KECA 1415 (KLR) held:“Was the suit against him statutory time barred? Section 4(2) of the Limitation of Actions Act provides that an action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued. This presupposes a case of a one-time trespass. The term “accrue” in the context of a cause of action means to arrive, to commence, to come into existence or to become a present enforceable demand or right. The time of accrual of a cause of action is a question of fact (see Black’s Law Dictionary at Page 23). However, in a case of a continuing trespass, a trespass consists of a series of acts done on consecutive days that are of the same nature and that are renewed or continued from day to day so that the acts in the aggregate form one indivisible harm.’’ 41.This Court in Muthiora vs. Marion Muthama Kiara (Suing on behalf of the Estate of Erastus Muthamia Kiara - Deceased) (Civil Appeal 43 of 2017) [2022] KECA 28 (KLR) expressed itself on the issue as follows:“…it is clear that any unauthorized entry whether present or continuous is trespass. In this case, it is indeed common ground that the appellant entered into and has remained in occupation of the suit property. The appellant’s continued occupation of the said property from the first date of entry in so far as it is unauthorized by the respondent amounts to trespass and remains as such to date. The respondent’s claim for trespass being a continued tort is, therefore, not time barred.” 42.The well laid down principle is that the continuance of an action after the first injury constitutes a continuous injury, and a fresh cause of action can be brought from time to time as long as the injury persists until it is discontinued. Therefore, for as long as an injury is being committed and it is yet to be in the past, it is a continuous injury. In Njau & another vs. Nderitu (2025) KECA 2206 (KLR), it was held thus:“Courts generally view the unlawful possession as a continuing trespass for which an action lies for each day that passes and the trespass continues. See Konskier vs Goodman Ltd [1928] 1 KB’’ 43.Therefore, the appellants’ prayer for a declaration that they were the proprietors of the suit property and for injunctive orders against the respondents from interfering with the suit property, was proper and tenable. This is because, for each day the respondents were on their suit property, it constituted a fresh cause of action; thus, continued trespass, which was actionable. Our finding is that the learned Judge fell into error by finding that the appellants’ suit was statute barred in circumstances where continuous trespass was established. 44.As to whether the appellants proved ownership of the suit property, Section 26 (1) and (2) of the Land Registration Act provides that Certificate of Title held by a party is conclusive evidence of ownership of land unless otherwise proved as follows:1.The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—SUBPARA a.on the ground of fraud or misrepresentation to which the person is proved to be a party; orSUBPARA b.where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.PARA 2.A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original. 45.It is not in contestation that there is on record a Provisional Certificate of Title which was produced in court by the appellants demonstrating ownership of the suit property. The title was issued pursuant to Gazette Notice No. 8946 of 29th July 2011 after the original was lost, and it was issued to Arab Central Association of Kenya, Mombasa which is also known as Arab Welfare Association of Kenya, Mombasa. There is therefore sufficient proof that the Charitable Trust was the registered owner of the suit property. 46.On the last issue as to whether the respondents are entitled to claim the suit property by way of adverse possession, the trial Judge after considering the evidence adduced before her was convinced that the respondents and the necessary parties proved that they had resided on the suit property uninterruptedly for over 12 years by dint of existence of the alleged social amenities thereon, namely water, electricity and security lighting supply, boreholes, a community library constructed by a Non-Governmental Organization, a community football ground used by the youth and a private school. She was also informed in her finding by the respondents’ evidence that some their deceased kin had been buried on the suit property. 47.Again, perusing the statements of defence by the respondents and the necessary parties respectively, there is no inclination that they pleaded or even filed a counterclaim alleging entitlement to the suit property by way of adverse possession. It is trite law that a claim of adverse possession is a matter of fact which must be pleaded. It cannot just be picked from the air and planted on a party’s case. Commenting on the importance of specifically pleading a claim of adverse possession, this Court in Marira & 2 Others vs Mutiso & 4 others (2025) KECA 1437 (KLR) pronounced itself thus:“A claim of adverse possession must be specifically pleaded in a legal sense. This means that the party claiming adverse possession must clearly state in his pleadings that he is seeking ownership of the land based on the principle of adverse possession. In this case, it was not enough to simply state that the 1st and 2nd respondents were on the suit properties from 1975 to date. They needed to explicitly state that their possession was adverse, meaning that it was without the owner’s permission and with intent to claim ownership. Pleading adverse possession provides a clear notice to the opposite party that the claimant is asserting a right of ownership based on the specific legal doctrine of adverse possession. Such a plea will allow the opposite side a fair opportunity to respond to the claim and present their case. Ultimately, a proper pleading ensures fairness and due process.’’ 48.Furthermore, in Amollo vs. Okong’o & 2 others (2023) KECA 789 (KLR), this Court rejected the appellant’s argument that the issue of adverse possession, although not pleaded can be inferred from the pleadings by dint of the length of stay on the suit property in question for over 39 years held as follows:“In addition, not once did the respondents, in answering the appellant’s claim, create an impression that they are answering to a claim for adverse possession. Indeed, not even in the submissions made by the parties before the trial Court did the issue of adverse possession show itself. This is not one instance where, although not pleaded, a matter is one for determination in the sense of Odd Jobs vs. Mubia [1970] EA 476 where Duffus P. stated: -‘Generally speaking, pleadings are intended to give the other side fair notice of the case that it has to meet and also to arrive at the issues to be determined by the court. In this respect a trial court may frame issues on a point that is not covered by the pleadings but arises from the facts stated by the parties or their advocates and on which a decision is necessary in order to determine the dispute between the parties’Clearly then the appellant could not and cannot sustain a claim for adverse possession.” 49.The onus of proof of existence of adverse possession rests on the person(s) who asserts its existence and, in this case, the respondents. The respondents simply made a case of the length of time that they had stayed on the suit property. DW1 testified that he was born on the suit property in the year 1967 while DW2 testified that he moved into the suit property in the year 1986. As for DW3 he stated that he moved into the suit property in the year 1990. However, none of them succinctly pleaded the claim for adverse possession in a counterclaim. It was therefore preposterous for them to claim that they had lived thereon for all the years on the basis of existence of the alleged social amenities, yet no evidence as their existence was adduced, photographic or documentary, was presented in court. The best that the learned Judge would have done was to conduct a visit of the locus in quo so as to ascertain the true status on the ground. She instead took the words of the respondents to be the gospel truth against the tenets of making a finding based on evidence. 50.We conclude this discourse by observing that the respondent’s defence having not been based on a claim of adverse possession, the learned Judge fell into error in deciding the suit in their favour on the basis that they occupied the suit property by way of adverse possession. 51.In the end, we arrive at the inescapable conclusion that the appeal is meritorious and the same is hereby allowed.Consequently, the judgement of Matheka, J. delivered on 23rd March 2023 in Mombasa ELC Case No. 272 of 2013 be and are hereby set aside. In place, an order be and is hereby issued allowing the prayers sought by the appellants Amended Plaint dated 10th January 2019. The costs of the suit in the trial court and of this appeal are awarded to the appellants. DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF MAY, 2026.A. K. MURGOR............................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.............................JUDGE OF APPEALG. W. NGENYE-MACHARIA............................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR