https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3903

Khaluyile v Murabi & another (Sued as Administrators and representatives of the Estate of Stephano Wasia-Deceased) (Environment and Land Appeal E082 of 2024) [2026] KEELC 3903 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEELC 3903 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Appeal E082 of 2024 A Nyukuri, J June 17, 2026 Between Ayub Chongo Khaluyile Appellant and Zephania Mukavane Murabi & Jotham Wasia (Sued as Administrators and representatives of the Estate of Stephano Wasia-Deceased) Respondent (Being an appeal against the judgment of Hon. ANGELA ODAWO (PM) delivered on 30th October 2024 in Kakamega CM ELC Case No. E020 of 2020) Judgment Introduction 1.This appeal arises from the judgment of Hon. Angeline Odawo (PM) delivered on 30th October 2024 in Kakamega CM ELC Case No. E020 of 2020. In the impugned judgment, the trial court held that the appellant herein failed to prove his claim of adverse possession in respect of parcel No. Kakamega/Lukume/377 (suit property) and dismissed his claim on the basis that the applicant had not demonstrated peaceful and exclusive use of the suit property for a period of 12 years. Background 2.The appellant herein (the plaintiff in the lower court) commenced Kakamega CM ELC CASE No. E020 of 2020 by way of Originating Summons dated 28th September 2020 supported by the applicant’s affidavit sworn on even date, wherein he sought against the respondent herein the following orders;a.That the applicant is entitled to vacant possession of the whole of that land comprised in L.R No. Kakamega/Lukume/377 by virtue of adverse possession.b.That the defendants do sign the necessary transfer documents to facilitate the transfer of L.R No. Kakamega /Lukume/377 to the applicant’s names.c.That the respondent do bear the costs of this application. 3.The applicant pleaded that the suit property was registered in the name of the late Stephano Wasia whose estate is administered by the respondent. That since 1973, he had been in exclusive, quiet, peaceful, open and uninterrupted actual occupation and possession of the suit property. 4.The suit was opposed. The respondent entered appearance and filed replying affidavit dated 14th September 2022. He stated that the applicant has never been in occupation of the suit property. That his late father Stephano Wasia, died in 1981, and even before his death, the applicant never used the suit property. That he was the administrator of his father’s estate and the applicant swore an affidavit in the succession cause stating that he has never trespassed on the suit property. That the applicant occupies parcel No. Kakamega/Lukume/378 which is in the name of his deceased father the late Khaluyile Wamenya and which abuts the suit property. That all that there was is a boundary dispute in respect of the two parcels. That the applicant has never used the suit property which explains why his supporting affidavit does not explain the manner of his occupation. 5.The suit was heard by way of viva voce evidence. The plaintiff presented one witness while the defendant presented three witnesses. Plaintiff’s evidence 6.PW1 was Ayub Change Khaluyile, the plaintiff. He adopted his affidavit of 28th September 2020 as his evidence in chief. His testimony was that since 1973, he had been in open, exclusive, quiet, peaceful and uninterrupted occupation of the suit property. 7.On cross examination, he stated that he did not know Stephen Wasia. That the suit property was given to him by his father. That his father owned parcel No. Kakamega/Lukume/378. That he has built a home on parcel No. Kakamega/Lukume/378. That marked the close of the plaintiff’s case. Defendants’ evidence. 8.DW1 was Zephania Mukabane Murambi, the defendant. He adopted his witness statement as his evidence in chief. His testimony was that the applicant has never occupied the suit property. That there had been a boundary dispute in respect of parcel Nos. Kakamega/Lukume/377 and 378. 9.On cross examination, he stated that the applicant was not staying on the suit property but had destroyed the fence thereof. That parcel No. Kakamega/Lukume/377 is in the name of his father while Kakamega/Lukume/378 is in the name of the applicant’s father. 10.DW2 was Jotham Wasia, a village elder and neighbor of the parties. He stated that the applicant interfered with the boundary of his neighbor and was summoned severally by the Chief’s office. That a boundary dispute was filed in Butali court when the applicant filed the suit herein. He produced a grant; three affidavits; and a search certificate. 11.On cross examination, he stated that he has not lived on the suit property. That the suit property has a church but no house. That his father bought the land from the applicant’s father. 12.DW3 was Isaiah Ayumba Makweta. He stated that the applicant has not built a home on the suit property. In cross examination, he stated that the applicant was the one utilizing the suit property but does not live on it. 13.Upon consideration of the pleadings, evidence and submissions, the trial court held that the applicant had not proved adverse possession and dismissed his claim. 14.Aggrieved, the applicant, now appellant challenged the trial court’s judgment vide an amended Memorandum of appeal dated 25th November 2024 and amended on 16th July 2025 citing six grounds of appeal as follows;a.The learned trial Magistrate erred in law and in fact when she failed to hold that the appellant had taken possession of land parcel L.R. NO. KAKAMEGA/LUKUME/377 since 1973 and as such could assert rights over the said land.b.The learned trial Magistrate erred in law and in fact when she failed to find, despite the evidence placed before her, that the respondents, being persons having title to the land parcel L.R. NO. KAKAMEGA/LUKUME/377 had omitted and/or neglected to take action against the appellant in asserting their title for a period exceeding twelve (12) years.c.The learned trial Magistrate erred and was wrong in failing to fully analyze and appreciate the legal input and effect of succession proceedings in Kakamega Succession Cause No. 530 of 2009 filed by the respondents herein.d.The learned trial Magistrate erred in law and when she penalized the appellant by finding without evidence, that the appellant had forcefully gained entry into land parcel L.R. NO. KAKAMEGA/LUKUME/377 and became hostile towards the respondents denying them later use of the said parcel of land.e.The learned trial Magistrate erred in law and fact when she held that the appellant had not proved his case for adverse possession against land parcel NO. KAKAMEGA/LUKUME/377 on a balance of probabilities.f.The learned trial Magistrate erred and failed to fully analyze and appreciate the nature of the case before her and the issues for determination and consequently fell in error and arrived at a wrong determination of the case. 15.Consequently, he sought orders that;a.The appeal be allowed with costsb.An order setting aside the judgment dated 30th October 2024 and therewith substitute with an order declaring the appellant held that the appellant had enjoyed factual possession of the land parcel L.R NO. Kakamega/Lukume/377 for more than 12 years, and as such, the respondents title was extinguished and the appellant is therefore entitled to be registered as proprietor of the entire L.R NO. Kakamega/Lukume/377 in dispute.c.The order on costs made against the appellant be set aside, and in its place, an order directing that each party does bear their own costs be made. 16.The appeal was disposed by way of written submissions. On record are submissions filed by the appellant dated 4th August 2025 and the respondents’ submissions dated 28th July 2025. Appellant’s submissions 17.The appellant relied on the cases of Mombasa Teachers Cooperative Savings & Credit Society v Robert Muhambi Katana & 15 Others [2018] e KLR and Chevron K. Ltd v Harrison Charo Wa Shutu [2016] e KLR regarding elements to be proved in respect to a claim for adverse possession. The plaintiff argued that from the pleadings and evidence presented, the appellant proved his claim of adverse possession, while the respondent gave contradictory evidence. Further that the evidence showed that the appellant built a church on the suit property. 18.Reliance was further paced on section 7 of the Limitation of Actions Act and the case of Iga v Makerere University (1972) EA 65, for the proposition that the limitation period is necessary for proof of adverse possession. The plaintiff also submitted that as long as the applicant proves uninterrupted possession for 12 years, his claim for adverse possession should be allowed, citing the case of Njau (being administrator of the Estate of Inasio M’Njau M’acece – Deceased & Another v Mucece (Being the administrator of the estate of James M. Njeru (Environment and Land Appeal E010 OF 2023 [2024] KEELC 3686 (KLR) (15 March 2024) (Judgment). Respondents’ submissions. 19.The respondents submitted that the parties herein have had several cases in court. Supporting the trial court’s judgment, they argued that the same was based on the proper application of the law on the facts presented. They relied on the case of Loise Nduta Itotia v Aziza Saidi Hamisi (2020) e KLR and submitted that the appellant had failed to demonstrate uninterrupted possession of the suit property for 12 years. The respondents further argued that the appellant had been summoned severally in respect of the succession case regarding his trespass on the suit property which meant that he had not had peaceful occupation. Analysis and determination. 20.The court has carefully considered the appeal, parties’ rival submissions and the entire record. 21.This being a first appeal, the duty of this court as a first appellate court is to re-analyze, re-evaluate and re-assess the evidence tendered before the trial court and make its own independent conclusions bearing in mind that it had no advantage of seeing or hearing witnesses and therefore make due allowance for that. 22.The role of the first appellate court was discussed in the case of Gitobu Imanyara & 2 Others v. Attorney General [2016] eKLR, by the Court of Appeal as follows;‘‘An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must consider the evidence, evaluate it itself and draw its own conclusions, although it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 23.Having considered the grounds of appeal raised in the Memorandum of Appeal herein, the only issue that arise for this court’s determination is whether the trial court was wrong in concluding that the appellant failed to prove his claim of the suit property under the doctrine of adverse possession. 24.The Limitation of Actions Act provide the basis for a claim over land under the doctrine of adverse possession. Section 7 of the Limitation of Actions Act bars a person from bringing a suit for claim of land after twelve years, and provides as follows;“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.”Section 13 provides as follows;1.“ A right of action to recover land does not accrue unless the land 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, whereunder 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.3.For the purposes of this Section, receipt of rent under a lease by a person wrongfully claiming, in accordance with Section 12(3) of this Act, the land in reversion is taken to be adverse possession of the land.”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.”Section 38 (1) and (2) provides as follows;“Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in Section 37 of the Act, 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.” 25.Essentially, where a trespasser, without force, secrecy or the owner’s permission, dispossesses a true owner of land and the owner fails to assert their rights, leaving the trespasser to openly and without interruption possess such land for 12 years, the owner’s rights in the land becomes extinguished under the doctrine of adverse possession. Hence, in such circumstances, an adverse possessor may apply to this court to have the land registered in their name under the doctrine of adverse possession. 26.The rationale for the doctrine of adverse possession was stated in the case of Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR where the Court of Appeal cited with approval the case of Adnam v Earl of Sandwich (1877) 2 QB 485 where it was held as follows;“The legitimate object of all statutes of limitation is in no doubt to quiet long continued possession, but they all rest upon the broad and intelligible principles that persons, who have at some anterior time been rightfully entitled to land or other property or money, have, by default and neglect on their part to assert their rights, slept upon them for a long time as to render it inequitable that they should be entitled to disturb a lengthened enjoyment or immunity to which they have in some sense been tacit parties.” 27.To prove adverse possession, an applicant ought to show that they have dispossessed the rightful registered owner of their land for the statutory period of 12 years. In the case of Maweu v Liu Ranching and Farming Cooperative Society 1985 KLR 430, the court held as follows;“Thus, to prove title by adverse possession, it was not sufficient to show that some acts of adverse possession have been committed. It was also to prove that possession claimed was adequate, in continuity, in publicity and in extent and that it was adverse to the registered owner. In law, possession is a matter of fact depending on all circumstances.” 28.Similarly, in Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR, the court described adverse possession in the following terms;“Adverse possession is essentially a situation where a person takes possession of land and 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, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the Adverse Possession is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act, which is in these terms;“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.” 29.In the instant suit, the appellant pleaded that he had exclusively, openly, quietly, peacefully and without interruption occupied the suit property for over 12 years. The applicant was obligated to state the manner of occupation and to show that it was continuous with no interruption. Both his pleading and testimony did not state the manner of occupation. The appellant did not produce a single document to prove his claim, not even an extract of title of the suit property, which is a requirement for every claim of adverse possession, under the provisions of Order 37 Rule 7 of the Civil Procedure Rules. Therefore, the appellant made assertions that were not substantiated. There was therefore no evidence of the appellant’s occupation of the suit property. There was also the fact that the appellants father’s land abuts the suit property and parties have had boundary disputes for a while. Therefore, there was evidence that there had been no peaceful occupation of the suit property. 30.In the premises, the trial court was right in reaching the conclusion that the appellant failed to prove his claim on the suit property on the basis of the doctrine of adverse possession. That being the case, there is no justification for this court’s interference with the conclusions made by the trial court. 31.The upshot is that I find no merit in this appeal, which I dismiss with costs to the respondents. 32.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 17TH DAY OF JUNE 2026A. NYUKURIJUDGEIn the presence ofNo appearance for the appellantMr. Mondia for the respondentsCourt Assistant: Delphine