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Njihia v Wainaina (Civil Appeal 131 of 2020) [2026] KECA 1398 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1398 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal 131 of 2020 S ole Kantai, A Ali-Aroni & AO Muchelule, JJA July 10, 2026 Between chege Njihia Appellant and Peter Irungu Wainaina Respondent (Being an appeal from the Judgment of the Environment and Land Court at Murang’a (Kemei, J.) dated 7th May 2020 in ELC Case No. 31 of 2018) Judgment 1.This appeal arises from a claim of adverse possession of land Parcel No. Loc 18/Kirere/210 (hereinafter referred to as ‘the suit property’), in an Originating Summons (O.S.) dated 5th November 2008, and later amended on 3rd May 2018, wherein the respondent sued the appellant and two others, claiming adverse possession of the suit property and seeking a declaration that the appellant's title had been extinguished in his favour; and an order that he be registered as the proprietor of the suit property under section 38 of the Limitation of Actions Act (‘the Act’) in place of the appellant. 2.The O.S. was supported by the respondent’s affidavit, sworn on 3rd May 2015, wherein he deposed that he had been in possession of the suit property peacefully, openly and as of right since 1991, a period of more than 12 years; that the property was originally registered in the name of Wamaitha Kihara (Wamaitha) who initially allowed his late father, Wainaina Kihara (Wainina), to occupy the suit property in 1964. In 1972, his father and Wamaitha entered into an agreement to sell the same. Wamaitha was his grandfather’s second wife and his late father's stepmother. Further, he deposed that the suit property was the subject of High Court Civil Case No. 622 of 1989 (hereinafter referred to as ‘Case No. 622/89’) between his late father and Wamaitha (whose interest was inherited by Njuguna Kihara). However, the case was dismissed on 28th September 2008 on the ground that the appellant, who was the registered proprietor following the transmission, had not been joined as a party to the suit. 3.He further deposed that after his father's death in 1991, he continued to live on and cultivate the suit property exclusively and without interruption and that even when the appellant was registered as the proprietor of the suit property on 18th September 1995, he did not interfere with his occupation or file eviction proceedings against him either. The respondent thus claimed that he was entitled to registration as the proprietor under section 38 of the Act on the basis of acquired rights. 4.In opposition, the appellant filed a replying affidavit sworn on 17th November 2008. He averred that he was registered as the absolute owner of the suit property following succession proceedings in Murang'a Succession Cause No. 7 of 1997, (hereinafter ‘succession cause’) and upon registration, he filed Murang'a Civil Case No. 464 of 1995 (hereinafter ‘Case No. 464/95’), seeking to evict Margaret Mugoiri Wainaina (Mugoiri), the respondent’s mother, who defended the suit and sought for stay orders. She also filed an application for revocation of the grant in the succession cause. He contended further that the respondent had not enjoyed uninterrupted occupation due to the multiplicity of suits to which he was a party. 5.At the hearing, the matter proceeded by way of viva voce. PW1, the respondent, testified that he had a long and continuous presence on the suit property, having entered in 1964 with his parents and having lived there ever since. He testified further that he had significantly developed the land, planted coffee, bananas, and avocados, and that he resides there with his family. He also claimed that his father purchased the land in 1972 from Wamaitha, his grandmother's co-wife. However, he acknowledged that the sale was never finalised by way of a transfer to his father. 6.He further stated that his father, Wainaina, initially sued Wamaitha for adverse possession (in HCCC 622/89), and when his father died, his mother, Mugoiri, was substituted as the plaintiff in the case. Following her death, he continued as the plaintiff. The suit was dismissed on 23rd September 2008. 7.He deposed further that in 2008, he filed a fresh suit (‘HCCC No.149/2008’) where he also claimed adverse possession of the suit property. He alluded to Case No. 464/95, in which the appellant had sued his mother, but the proceedings were stayed to allow the hearing of Case No. 622/89, which was dismissed. 8.PW2, Geoffrey Macharia Muthoka, testified that he was present when Wainaina bought the land from Wamaitha. He recalled that Njuguna, Wamaitha's son, was present as her witness. He opined that although the transfer was never effected in favour of Wainaina, the respondent ought to be the rightful owner of the land. 9.For the appellant, DW1, Njuguna Kihara testified that the respondent is his nephew and the son of Wainaina Kihara. He explained that his father had two wives: Wamaitha and Wakesho. He relocated to Wanjohi in Nyandarua and, as an only child, moved with his mother (Wamaitha), who left the suit property in the care of Wainaina as a caretaker, allowing him to cultivate the land for sustenance. He denied that his mother sold the suit property to the respondent’s father, contending that his mother sold the land to the appellant. He admitted that Wainaina filed suit for adverse possession against his mother, and when she passed away, he was substituted in her place. Further, upon Wainaina’s death, his wife, Mugoiri, took over as the plaintiff, and later the respondent was substituted in her place. 10.He further testified that Case No. 622/99 was dismissed, after which the respondent filed Case No. 149/2008 in Nyeri, where he was cited as a respondent. He informed the court that he permitted the suit property to be transferred to the appellant in accordance with his mother's wishes and maintained that he had not sold the land to the appellant, as it was never registered in his name. 11.DW2, the appellant, testified that the suit property was registered in his name, having bought the same from Wamaitha. He recalled that the suit property had been the subject of Case No. 622/89, in which the respondent’s father had sued Wamaitha; he reiterated all the substitutions for the deceased persons as narrated by the other witnesses. He conceded that the respondent and his mother had cultivated the suit property. He testified that he had learnt from Wamaitha upon relocating to Nyandarua, she had left the suit property in the care of Wainaina, the respondent's father. 12.He testified further that upon acquiring title to the suit property, he sued Mugoiri in Case No. 464/95, where he sought eviction orders against her. He argued further that the matter is res judicata and prayed that the orders sought be dismissed. 13.In a judgment delivered on 7th May 2020, the Court discerned the issues for determination to be whether the suit was res judicata and whether the possession by the respondent was adverse to the title held by the appellant. 14.In the end, the court formed the view that Wamaitha never asserted her ownership rights against Wainaina, allowing him and his family to continue the occupation of the suit property. The court concluded that by the time Wainaina filed Case No. 622/89, adverse possession had already accrued, meaning neither Case No. 464/95, in which eviction was sought, nor the succession cause, interrupted the respondent’s claim. 15.The court also found that Wamaitha sold the suit property twice: first to Wainaina Kihara in 1972, and later to the appellant and that since the sale to the respondent’s father was first in time, it took precedence. Further, that the respondent’s family's occupation became adverse after the incomplete sale in 1972 and that the 12-year statutory limitation period for adverse possession had run its full course by 1984. The court found that the appellant purchased the land with the full knowledge of the respondent’s occupation. In the end, the Court found in favour of the respondent. 16.Aggrieved by the judgment of the trial court, the appellant has appealed to this Court based on nine grounds in his memorandum of appeal dated 2nd September 2020 urging that the evidence on record showed that the respondent's family entered the suit property with permission and time could not start running in favour of the respondent until the permission was withdrawn, further time could not run during the pendency of the court proceedings; the learned Judge erred in finding that the respondent's father, Wainaina had purchased the suit property from Wamaitha when the evidence for such a sale was weak and unreliable; finding that the appellant purchased the suit property from Wamaitha’s son, whereas there was no evidence for that finding; finding that the title of the appellant had been extinguished in favour of the respondent while the evidence on record showed that the respondent had been a party to previous proceedings in respect of the same property; failing to appreciate that the proceedings in Case No. 464/95 amounted to interruption of possession and the time ceased to run when the High Court issued an order of stay of those proceedings in the succession cause until the said succession cause was finalized; in failing to find that having entered the suit property by virtue of his being a child of the original plaintiff, (Wainaina), in Case. No. 622/89 and having prosecuted the said suit as the personal representative of his father’s estate, the respondent's adverse possession would only have begun after the conclusion of the said suit on 28th September 2008, and that the judgment is against the weight of evidence. He sought to set aside the judgment and have the appeal allowed as prayed. 17.The appeal before us was heard on the Court’s virtual platform by way of written Submissions. Learned counsel for the appellant filed submissions dated 15th November 2023. On adverse possession and interruption of time, counsel submits that it was the duty of the respondent to show when the stay of proceedings was lifted, but he did not. He asserts that time could not run in his favour as long as the eviction suit was stayed by a court order. He further submits that the respondent, in his evidence, admitted that his father originally entered the land with Wamaitha's permission, thereby making him a licensee of the owner, and failed to prove when that license was terminated. 18.On res judicata, counsel submits that the subject matter of this appeal was barred by the principle of res judicata because the respondent's father had previously filed a suit for adverse possession (Case No. 622/1989) against the appellant's predecessor in title, which was prosecuted by the respondent and his mother, and which was dismissed. The appellant argues that the respondent is claiming the same reliefs over the same subject matter. 19.On the purported sale agreement, where the respondent claimed that his father bought the suit property from Wamaitha, counsel argues that the trial court erred in accepting the document produced as a sale agreement as genuine and valid, yet it did not show whether the seller (Wamaitha) was present; nor did either of the parties or their witnesses sign the document. Counsel submits that accepting the document was an error that should invalidate the judgment. 20.On capacity to sue, counsel notes that the respondent stated in his submissions that he was acting on behalf of his deceased mother's estate, having been issued with a limited grant of letters of administration. Counsel submits that the respondent's originating summons did not indicate he was suing on behalf of his mother's estate, which is described as a misdirection. He submits that the filing of a suit for recovery of land would stop time from running for the purposes of section 38 of the Limitations of Actions Act, under which a person may claim to have become entitled to land by adverse possession. 21.On the part of the respondent, learned counsel filed submissions dated 4th June 2025 and contends that the impugned judgment was proper and within the confines of the law and should be upheld. Counsel submits that Case No. 622/89 was dismissed because the appellant (who was by then registered as proprietor of the suit property) had not been included in the suit. The respondent then filed the suit in Nyeri, which was later transferred to Muranga as ELC Case No. 31 of 2018 (O.S), which is now the subject of this appeal. He urges that the appellant bought the suit property from Njuguna Kihara, knowing that the respondent, the respondent's siblings, and their families lived on the suit property and carried out farming activities. 22.Counsel argues that the property had become adverse against Wamaitha and her predecessors in title long before the filing of Case 622/89. Counsel further submits that section 17 of the Limitation of Actions Act fully impacts any claim by the appellant in respect of the land. 23.We have considered the record, the rival submissions, the authorities cited, and the applicable law. This is a first appeal and our duty is to consider, evaluate and analyse the evidence afresh and draw our own conclusions, bearing in mind that we did not have the advantage of seeing or hearing the witnesses. This Court in Ng’ati Farmers’ Co-Operative Society Ltd. vs. Ledidi & 15 Others [2009] KLR 331 stated as follows:An appeal to this Court from a trial by the High Court is by way of re-trial 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 witness and should make due allowance in that respect. In particular, this Court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 24.We are also alive to the principle that an appellate court will not ordinarily interfere with findings of fact by the trial court unless it is shown that the court acted on no evidence, misapprehension of the evidence, or on wrong principles. In National Assembly vs. Gikonyo & 9 Others (Civil Appeal E884 & E868 of 2024 (Consolidated)) [2026] KECA 214 (KLR), while quoting Peters vs. Sunday Post Ltd [1958] EA 424, this Court stated that an appellate court should be slow to interfere with a trial court’s findings of fact unless it is satisfied that the trial court was plainly wrong. 25.From the memorandum of appeal, the record and the submissions of counsel, the issues that arise for our determination are:i.Whether the suit before the trial court was barred by the doctrine of res judicata?ii.Whether the respondent proved his claim of adverse possession. And whether time for adverse possession was interrupted by the suits pending in court particularly Case No. 464 of 1995 and Succession Cause No. 7 of 1997.iii.Whether the learned Judge erred in relying on the alleged sale agreement in finding that adverse possession accrued once the agreement between the parties failed. 26.The appellant submitted that the suit was res judicata on account of Case No. 622/89, which had sought reliefs similar to the suit subject of this appeal and was dismissed. The respondent’s answer was that the earlier suit was dismissed for failure to have joined the appellant who was the registered proprietor of the suit property. 27.The doctrine of res judicata is anchored in section 7 of the Civil Procedure Act. The doctrine exists to bar multiplicity of suits and to ensure finality in litigation. For that reason, this Court must decide whether the doctrine is relevant in the circumstances of this case. 28.On the issue, the trial Judge stated as follows:“I have looked at the Judgement of the court in HCCC No 622 of 1989 and it is not in dispute that the claim was in respect to title by way of adverse possession. The subject matter is the suit land herein. However, the parties to the suit were the current Plaintiff and the 2nd Defendant. The reason for the dismissal was because of non-joinder of the 1st Defendant, the registered owner of the suit land.It is the view of the court that the current suit is not res judicata as the parties are different and the issue was not finally heard and decided by the Court.” 29.We are in total agreement with the trial court’s view. This position has repeatedly been expressed by this Court. In Muthee (As the Administrator of the Estate of Karl Jacobs Ruedin-Deceased) & 2 Others vs. Alphonce Mwangemi Munga & 11 Others (Suing on Their Behalf and on Behalf of 367 Employees of African Safari Club Limited); Erdemann Property Limited & 3 Others (Affected Party) (Civil Appeal 263 of 2022) [2024] KECA 793 (KLR), this Court held that:“One of the conditions for the successful invocation of the doctrine of res judicata is that the earlier suit must have been determined on merits. A suit that is dismissed for want of prosecution cannot be said to have been determined on merits. While a court may well decline to entertain subsequent proceedings where the conduct of a party who files one suit after another, but fails to prosecute them amounts to an abuse of the process of the court, it cannot invoke the doctrine of res judicata to dismiss the suit based on the earlier dismissed suit.” 30.Similarly, in Gichomo & Another vs. Kiiru (Civil Appeal 109 of 2021) [2025] KECA 124 (KLR), this Court reiterated that for the res judicata principle to apply, the following conditions must be satisfied:a.The matter in issue must be directly and substantially in issue in the former suit;b.The former suit must have been between the same parties or parties claiming under them; andc.The matter must have been heard and finally determined by a court of competent jurisdiction. 31.It is our view that in dismissing Case No. 622/89, the court did not conclusively determine the dispute. The court technically found fault with the suit because the registered owner (the appellant) of the suit property had not been made a party to those proceedings. The matter was not determined on merit, apart from the fact that the parties were not the same. Accordingly, this ground of appeal is not merited; it fails. 32.Section 38(1) of the Limitation of Actions Act states that:Where a person claims to have become entitled by adverse possession to land under any of the Acts cited in section 37 of this 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.Section 38(1) ought to be considered along with sections 7 and 13 of the same Act.Section 7 provides: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.Section 13, on the other hand, provides that:A right of action to recover land does not accrue unless the land is in the 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. 33.The appellant’s case is that the respondent’s father entered the land as a licensee, a caretaker, and therefore, the occupation could not be adverse to the owner's title. On the other hand, the respondent’s case is that his father entered upon the suit property and occupied it continuously and uninterruptedly since 1964. In addition, in 1972, his father, the original owner and Wamaitha entered into an agreement to sell the property, and his father paid Kshs 3000, leaving a balance of Kshs. 1,000, which was to be paid on transfer; however, Wamaitha refused to transfer the property. After his father’s death in 1991, he and his mother continued the occupation and development of the suit property. Indeed, aside from his mother, the evidence on record shows that the respondent and his family have been on the land for decades, cultivating and residing thereon. 34.The learned trial Judge was persuaded that the respondent’s family’s occupation was long-standing and that the registered owner did not successfully assert his title within the limitation period. The learned Judge found that:41.It is clear from the record that at no time did Wamaitha assert her right of ownership by dispossessing the Plaintiff’s father from the land and he and his family continued to occupy the suit land until 1991 when he died leaving the suit land in the possession and occupation of the Plaintiff and his mother Margaret Mugoiri.42.Time therefore started running for purposes of adverse possession from 1972. By the year 1984, 12 years had expired and adverse possession had accrued and vested in the name of Wainaina Kihara.” 35.The appellant faulted the learned Judge for placing weight on the alleged sale agreement dated 12th March 1972 and using it as a basis for computing time. The issue is whether the trial court erred in relying on the alleged sale agreement. 36.The law of contract existing in 1972 was totally different from what subsists today. In 1972, when the said agreement was entered into between Wamaitha and Wainaina, contracts were governed by the Law of Contract (Chapter 23 of the Laws of Kenya), which was enacted in 1960. The sale of land did not require a formal, fully executed contract. The law recognised a memorandum or note, and verbal contracts were valid and enforceable where there was part-performance. Section 3 of the Contract Act provided as follows; - 3. No suit shall be brought upon a contract for the disposition of interest in land unless the agreement upon which the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorized by him to sign it. Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intended purchaser or lessee who has performed or is willing to perform his part of a contract- i.Has in part performance of the contract taken possession of the property or any part thereof; orii.Being already in possession, continues in possession in part performance of the contract and has done some other act in furtherance of the contract. 37.We consider the ‘agreement’ produced to be a note within the meaning of section 3 quoted above. Over and above, there was possession and part payment under the contract, and PW2, who had witnessed the transaction gave evidence that was not seriously controverted. The appellant claimed ownership by way of succession, alleging that he had purchased the land from Wamaitha. Neither DW2 nor the appellant produced written or oral evidence as proof that Wamaitha had sold the property to the appellant, and if indeed she did, why had she not transferred the same to him in her lifetime? Even if she did, as the trial court observed, she sold the property twice. This could not subsist, as the moment she took money from Wainaina, she was deemed to have held the property in trust for him pending transfer. Further, the moment she declined to transfer the property to Wainaina, time began to tick in favour of Wainaina, and by 1984 the claim for adverse possession had accrued against Wamaitha, her representatives or successors in title. 38.Looked at differently, aside from the occupation of the suit property by Wainaina or his wife, Mugoiri (the respondent’s parents), the respondent asserts his occupation of the suit property since 1991. The same is not controverted. From 1991 to the time of Wamaitha's death, to DW2 representation of Wamaitha’s estate, and until the appellant became the registered owner, no one asserted their right against the respondent. 39.Upon acquiring title, the appellant may have pursued Mugoiri, but he did not interrupt or even pursue a claim against the respondent, yet another person in possession of the suit property aside from Mugoiri, until the appellant took him to court in 2008 seeking adverse possession. That is a period of 13 years. 40.In Mate Gitabi vs. Jane Kabubu Muga Alias Jane Kaburu Muga & 3 Others [2017] eKLR, on the issue at hand, this Court stated as follows:“For one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is without secrecy, without force, and without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin maxim nec vi, nec clam, nec precario. See also ... Kasuve vs Mwaani Investments Limited & 4 Others [2004] 1KLR where this Court stated as follows:“In order to be entitled to land by adverse possession, the claimant must prove that she has been in exclusive possession of land openly and as of right and without interruption for 12 years, either after dispossessing the owner or by discontinuation of possession by the owner on his own volition.’" (Emphasis added)In Gerald Ndolo vs. Kitutu & 8 Others (Civil Appeal 394 of 2018) [2022] KECA 1289 (KLR), the Court held that:“For a claim founded on adverse possession to succeed, the person in possession must have a peaceful and uninterrupted use of the land. The physical fact of exclusive possession and the animus possidendi to hold as owner to the exclusion to the actual owner are important factors in a claim for adverse possession. The principles stated in the above holding are also encapsulated in the local legislation referred to elsewhere in this judgment. The direct import of these two provisions is, firstly, that a person dispossessed of land cannot bring an action to recover land after the expiration of twelve years from the date on which the right of action accrued, which is the date of dispossession. Secondly, after the expiration of the said twelve years the title of the registered owner shall be extinguished. Thirdly, the person in adverse possession is entitled to a title by possession.” 41.On whether time was interrupted by litigation. Evidence shows that between 1972 and 1989, Wainaina’s family’s occupation was peaceful and uninterrupted. Wainaina is the one who went to court in 1989 seeking to be declared the owner by way of adverse possession, a period of 17 years, so that any litigation by Wamaitha or her successor in title was time-barred. Despite the existence of litigation, the respondent’s occupation remained uninterrupted on the ground. Case No. 464/95 was between the appellant and Mugoiri and was filed after 23 years had elapsed. Accordingly, we agree with the learned Judge that the respondent’s possession was not interrupted in a manner sufficient to defeat the claim. 42.In conclusion, we find that the appellant has failed to demonstrate that the learned Judge misdirected himself on the applicable law or that he arrived at findings unsupported by evidence. 43.Accordingly, the appeal lacks merit. It is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NYERI THIS 10TH DAY OF JULY, 2026.S. ole KANTAI........................................JUDGE OF APPEALALI-ARONI........................................JUDGE OF APPEALA.O. MUCHELULE.........................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR