https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4628

Ndung’u v Mungai (Environment and Land Appeal E044 of 2024) [2026] KEELC 4628 (KLR) (21 July 2026) (Judgment) Neutral citation: [2026] KEELC 4628 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Appeal E044 of 2024 MAO Odeny, J July 21, 2026 Between John Ndung’u Appellant and George Gikanga Mungai Respondent (Being an appeal from the judgment of Honourable Lina Akoth Senior Resident Magistrate in Nakuru MCELC No. E126 of 2023 delivered on 8th August, 2024) Judgment 1.This appeal arises from a Judgment delivered on 8th August, 2024, in Nakuru MCELC No. E126 of 2023. The Appellant being aggrieved by the said judgment, lodged a Memorandum of Appeal dated 27th August, 2024, and listed the following grounds:1.That the Learned Trial Magistrate erred in law and in fact by imposing her own conditions that the Defendant now Appellant needed to have documentary evidence to prove adverse possession and which condition is not anchored in the law for the remedy of adverse possession or any known case law.2.That the Learned Trial Magistrate erred in law and in fact by claiming that the now Appellant had not demonstrated that he had been in possession of suit property since 2006, yet the Defendant called corroborating witnesses who confirmed that indeed he had been in possession of the suit property since 2006 and such had been in open, continuous, notorious, actual and exclusive possession of the suit property for over twelve (12) years and as such entitled to be declared the owner under the doctrine of adverse possession.3.That the Learned Trial Magistrate erred in law and in fact relying on the land change agreement dated 28th May, 2008 which had been objected and the objection sustained and as such was never produced as an exhibit in making her findings.4.That the Learned Trial Magistrate erred in law and in fact in failing to be impartial in analysis of the evidence and in particular the testimonies of the Defendant's witnesses who corroborated the Defendant's evidence that he had been in use and possession of the suit property since the year 2006.5.That the Learned Trial Magistrate erred in law and in fact in failing to allow the Defendant’s counterclaim and which counterclaim had been proved on a balance of probabilities and in so doing imposed a higher threshold on the Defendant now Appellant.6.That the Learned Trial Magistrate erred in law by failing to be guided by the law providing for adverse possession and as reiterated in various case laws on the elements to be proved in a claim for adverse possession and which elements were all present and proved by the Defendant now Appellant.7.That the Learned Trial Magistrate erred in law and fact by failing to consider the evidence before her such as the testimonies of the Defendant's witnesses, the letter by the chief confirming the Defendant's possession of the suit property and which all demonstrated that the Defendant had been in possession of the suit property since 2006 and which was over twelve (12) years and as such the title deed in the Plaintiffs name is held in trust for the Defendant.8.That the Trial Magistrate erred in law and in fact by failing to consider precedent in comparable cases when she dismissed the Defendant's counterclaim which is manifestly harsh considering the circumstances of the case.9.That the Learned Magistrate erred in law and in fact by applying her own theory in assessing the pleadings and evidence which made her fall into error of speculation and inserted her own facts and findings which were not supported by pleadings and/or evidence.10.That the Learned Magistrate erred in law and in fact in purporting to put into perspective materials and facts not contained in the pleadings evidence and submissions of parties.11.That the Learned Magistrate erred in law and fact in failing to consider the evidence on record, the Defendant's pleadings, submissions and the circumstances of the case prior to making her findings.12.That the findings of the Learned Magistrate are totally unsupported in law and by the evidence on record. 2.The Appellant prayed that the Judgment be set aside and Judgment be entered as per the amended counter claim dated 25th February 2024. 3.A brief background to this appeal is that the Respondent had filed an amended plaint dated 19th January, 2024, seeking the following orders:a.A declaration that the Plaintiff is the lawful and legal absolute proprietor of Plot Number Nakuru Municipality Block 16/331.b.An order of mandatory injunction compelling the Defendant to demolish the structures that he has built on Plot Number Nakuru Municipality Block 16/331, and vacate the suit property with immediate effect. 4.The Appellant filed an Amended Statement of Defence and Counterclaim dated 25th February, 2024, and sought the following orders:a.A declaration be issued that the Plaintiff is the lawful and rightful owner of Nakuru Municipality Block 16/331, by virtue of adverse possession having occupied the land openly, exclusively, and peacefully for over seventeen years (17), adverse to the interests of the Defendant.b.An order directing the Nakuru Land Registrar to cancel the title deed issued to the Defendant and the green card entry be rectified to reflect the Plaintiff as the registered proprietor of the parcel of land.c.The costs of the suit and the counterclaim plus interest thereto.d.Any other relief that this court deems fit to grant. 5.The matter was heard and the Trial Magistrate, in her judgment dated 8th August, 2024, allowed the Plaintiff/Respondent’s case and dismissed the Defendant/Appellant’s counterclaim with costs. 6.The Appellant being dissatisfied with the Judgment filed the current appeal. Appellant’s Submissions 7.Counsel for the Appellant filed submissions dated 21st February 2026 and identified the following issues for determination:a.Whether the appeal is merited.b.Whether costs ought to issue. 8.On the first issue, counsel submitted on grounds 1, 9 and 10 of the Memorandum of Appeal, relied on Section 7 of the Limitation of Actions Act and argued that the Appellant has been in open, continuous and uninterrupted possession of the suit property since 2006. Counsel further relied on the case of Jandu V Kirpai & Another [1975] EA 225 which was cited with approval in the case of M’Riria & 5 Others V Muthomi [2025] KECA 951 (KLR), and submitted that the trial court erred in holding that the Appellant ought to have produced documentary evidence in support of his claim of adverse possession. 9.On grounds 2, 4, 5, 6, 7 and 8, counsel relied on the case of Mtana Lewa V Kahindi Ngala Mwagandi [2015] eKLR, and submitted that the Appellant demonstrated that he has been in possession of the suit land since 2006 and therefore acquired it by way of adverse possession. Mr. Kahiga further submitted that the Appellant has been living on the 10-acre land, which belonged to the Wamagata Squatters, which forms part of the suit parcel, which was corroborated by the Chief’s letter and DW2’s evidence. Further, the Respondent never adduced any evidence in support of the fact that they have been in occupation and use of the suit land. 10.Counsel submitted that the purported exchange took place in 2008, yet the Respondent never took possession until 2018, and by then, the Appellant had already taken possession for more than 12 years. 11.On ground 3 and 10, counsel submitted that the Trial Magistrate erred by relying on the land exchange agreement that was never produced in court, and cited the cases of Kenneth Nyaga Mwige V Austin Kiguta & 2 Others [2015] eKLR, Kenya Akiba Micro Financing Limited V Ezekiel Chebii & 14 Others (2012) eKLR and Kimotho V KCB [2003) 1 EA, and Section 112 of the Evidence Act. 12.On the second issue of costs, counsel relied on the case Orix Oil Limited V Paul Kabeu [2014] eKLR and submitted that the Appellant having proved his claim of adverse possession, was entitled to the costs of the appeal. Respondent’s Submissions 13.Counsel for the Respondent filed submissions dated 9th March 2026, and identified the following issues for determination:a.What is the standard of review for a first Appellate court?b.Whether the Appellant proved the mandatory ingredients of adverse possession?c.Whether the trial court erred in its assessment of the evidence and the requirement for corroboration.d.Whether the Respondent is entitled to the reliefs granted at the Trial Court. Who should bear the costs of the appeal. 14.On the first issue, counsel relied on the case of Selle V Assorted Motor Boat Company E.A 123, and submitted that in an appeal the court is under a duty to re-analyze and re-evaluate the evidence tendered before the trial court and arrive at its own independent decision. 15.On the second issue, as to whether the Appellant proved the mandatory ingredients of adverse possession, counsel submitted that the wife of the original owner of the suit property testified that there was no building on the property as of 2006. That the first construction she observed was as late as 2018, which fact was never challenged by the Appellant. It was counsel’s further, submission that the record showed that the suit land still underwent subdivision in 2006 and was still in the possession of the original owner, James Mwangi Ngururi. According to counsel, adverse possession could not run against a title that was yet to be regularized or where the owner was still in active use of the land. 16.Mr. Ayisi relied on Section 107 of the Evidence Act and submitted that the trial court correctly observed that where a party claimed to have built a house 18 years ago, it was reasonable to expect some form of corroboration beyond mere oral testimony to tip the scales of probability in their favor. Counsel cited the case of Teresa Wachuka Gachira V Joseph Mwangi Gachira (Civil Appeal No. 325 of 2003) and submitted that the letters from a squatters' self-help group and a local chief were marked for identification but not formally proved by their makers and therefore lacked probative value. 17.Mr. Ayisi submitted that the Respondent proved that he was the legal owner of the suit land having acquired the original title in April 2023, following a succession process concluded in 2019. Further, the Appellant did not meet the threshold for adverse possession, therefore, the court had no option but to protect the rights of its registered owner and order the removal of any illegal structures. Counsel urged the court to dismiss the Appeal with costs. Analysis And Determination 18.This court will condense the grounds of appeal into two issues for determination:a.Whether the Trial Court erred in its finding that the Appellant had not proved the ingredients of adverse possession.b.Who should bear the costs of the appeal? 19.This is a first appeal and the court is cognizant of its primary role which is to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the trial court are to stand or not and give reasons either way as was held in the case of Abok James Odera t/a J. Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR. 20.Similarly, in the case of Okeno v Republic [1972] EA 32 at 36, the East Africa Court of Appeal stated the duty of the Court on a first appeal as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.” 21.From the evidence in the record of appeal, it was the Respondent’s case that he was the lawful proprietor of Plot Number Nakuru Municipality Block 16/331, which he acquired vide a land exchange agreement dated 28th May, 2008 between Erick Magangi who had bought the same from one James Ngururi (deceased). The record also shows that upon the death of James Ngururi, the deceased’s wife included the Respondent as a beneficiary to his estate and the suit property was later transferred to the Respondent whereby, he was issued with a Lease Certificate. 22.The Appellant argued that the Trial Magistrate erred by relying on a land exchange agreement that was never produced as evidence in court. The Respondent produced the transfer forms as well as the certificate of title which was never challenged by the Appellant. 23.The Appellant alleged that the Respondent through the Lands Office fraudulently caused the title to be registered in his name and listed the particulars of fraud under paragraph 8 of his amended statement of defence and counterclaim. 24.The Appellant’s case was bound to fail from the pleadings in the Defence and Counterclaim where he stated that the respondent illegally acquired a title deed to the suit land by way of fraud and/or misrepresentation to deny the Appellant enjoyment of his land. This was a red flag which the Respondent should have known that he could not peg his claim of adverse possession on blaming the Respondent for having acquired the title fraudulently, which he was relying on to pursue the doctrine of adverse possession. 25.For a person to succeed in a claim of adverse possession, he/she must acknowledge the owner’s title as a valid and clean title not tainted with fraud or misrepresentation. The court cannot sanitize a title that is fraudulently acquired to pass ownership to a claimant of adverse possession as was held in the case of Haro Yonda Juaje v Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR, that:“One cannot succeed in a claim for adverse possession before conceding that indeed the registered proprietor of the land is the true owner of the said land. It does not lie in the mouth of a claimant to aver that the title held by the registered proprietor was fraudulently acquired and then claim the same parcel of land under the doctrine of adverse possession. If the Plaintiff's averment is that the title which was issued to the Defendant was fraudulently acquired, then his cause of action would be for the rectification of title by cancellation pursuant to the provisions of Section 143 of the Registered Land Act and not adverse possession. He cannot use the doctrine of adverse possession to go around the decision of the Minister.” 26.The Appellant did not acknowledge the Respondent’s title as he claimed that it was fraudulently acquired, hence it follows that his claim for adverse possession cannot stand. Even if the Appellant recognized the title, he would still have an uphill task to prove the ingredients of adverse possession. 27.I have re-evaluated the evidence in the record of Appeal; the submissions by counsel and find that the Learned Trial Magistrate did not err in finding the Appellant had not proved the ingredients of adverse possession. The upshot is that the Appeal lacks merit and is hereby dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED AT NAKURU THIS 21ST DAY OF JULY 2026.M. A. ODENYJUDGE**