Kinda & 2 others v Baya & another (Civil Appeal E043 of 2023) [2026] KECA 1070 (KLR) (29 May 2026) (Judgment)

Kinda & 2 others v Baya & another (Civil Appeal E043 of 2023) [2026] KECA 1070 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1070 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E043 of 2023 SG Kairu, KI Laibuta & GW Ngenye-Macharia, JJA May 29, 2026 Between Mwangombe Rodgers Kinda 1st Appellant Chigunda Rodgers Kinda 2nd Appellant Anthony Kinda Mwangombe 3rd Appellant and Paul Thoya Baya 1st Respondent Emmanuel sifa Nyundo (Suing in the Capacity as the Administrators of the Estate of Wilson Baya Nyundo) 2nd Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court of Kenya at Malindi (M. A. Odeny, J.) delivered on 11th October 2023 in ELC Case No. 204 of 2017 Environment & Land Case 204 of 2017 ) Judgment 1.In this appeal, the appellants are challenging the judgment delivered on 11th October 2023 by the Environment and Land Court (ELC) (M. A. Odeny, J). In that judgment, the ELC restrained the appellants by permanent injunction from trespassing on or interfering with the property known as Title Number Kilifi/Roka/112 situated at Roka Kilifi. The appellants were ordered to vacate the property within 45 days failing which eviction was to issue. Their counterclaim for adverse possession was dismissed. Costs of the suit and of the counterclaim were awarded to the respondents. 2.The background is that, Wilson Baya Nyundo, who was the plaintiff before the ELC and who is since deceased, was the owner of the property known as Title Number Kilifi/Roka/112 measuring approximately 12.4 acres. He purchased the property from one Moses Gitari in 1990. He became the registered proprietor of the property on 7th September 1998 and was issued with a Title Deed. 3.In the year 2000, Wilson Baya Nyundo instituted suit before the Senior Resident’s Magistrate’s Court at Kilifi against one Kwekwe Kinda, who he claimed was “trying to settle on the land” and had “put a structure there…intent to settling…”. In a judgment delivered on 23rd November 2000, the Magistrate’s Court at Kilifi (C. O. Obulutsa) found that Wilson Baya Nyundo “is the registered owner of the parcel of land to the exclusion of all other people and is entitled to the same” and ordered Kwekwe Kinda “to give vacant possession of the land.” Subsequently on 27th February 2001, the same court ordered that “an eviction order shall issue as the defendant (Kwekwe Kinda) has failed to move out on her own.” 4.Kwekwe Kinda died sometime between 2001 and 2017 and she, together with her children, Mwangome Rodgers Kinda and Chigunda Rodgers Kinda, as well as her grandson Antony Kinda Mwangome (the latter three are the present appellants), had remained on the property during that period despite the orders given by the Magistrate’s court. 5.By a plaint dated 12th October 2017, Wilson Baya Nyundo instituted suit before the ELC against the appellants seeking the orders that were ultimately granted by the ELC in the judgment the subject of this appeal. It was Wilson Baya Nyundo’s case before the ELC that the appellants were illegally occupying and trespassing on the property and had built permanent structures, and had refused to vacate. 6.In their defence before the ELC, the appellants, while conceding that Wilson Baya Nyundo was the registered proprietor of the property, averred that they had been in occupation for over 12 years and had acquired rights over the same by virtue of adverse possession. They pleaded that Kwekwe Kinda against whom the Magistrate’s Court had decreed was “a separate legal person”; that executing the judgment of the Magistrate’s Court was time barred as Wilson Baya Nyundo “failed to execute the same before the lapse of 12 years.” 7.In their counterclaim, the appellants averred that they had been in occupation for over 12 years, had developed the property by building permanent structures, planting trees and carrying on subsistence farming. They sought a declaration that they are entitled to the property by virtue of adverse possession and for an order to be registered as proprietors thereof. 8.Wilson Baya Nyundo died on 4th March 2018 during the pendency of the suit before the ELC. Following substitution, he was replaced by the present respondents, his sons Paul Thoya Bayah and Emmanuel Sifa Nyundo as administrators of his estate and the suit proceeded to trial. 9.Paul Thoya Bayah and Stanslus Nyale Kiti (an assistant Chief in the area where the property is situated) testified on behalf of Wilson Baya Nyundo. Mwangome Rodgers Kinda, and Antony Kinda Mwangome, the 1st and 3rd appellants testified for the defence. After reviewing the evidence, the learned Judge of the ELC framed two issues for determination. First, whether an order of permanent injunction as sought in the plaint was merited. Second, whether the appellants had proved that they had acquired the property by adverse possession. 10.The learned Judge found that Wilson Baya Nyundo was the absolute and indefeasible registered owner of the property, and that the appellants had not met the ingredients necessary to sustain the claim for adverse possession. The Judge found that time for purposes of adverse possession would only have begun to run after the registration of the property in favour of Wilson Baya Nyundo. Further that the appellants’ occupation was interrupted when Wilson Baya Nyundo filed suit before the Magistrate’s Court. 11.The appellants have challenged the judgment of the ELC on seven grounds set out in their Memorandum of appeal, which were canvassed before us on 8th October 2025. Learned counsel Mr. Gikandi Ngibuini appeared for the appellants and highlighted the appellants’ written submissions dated 19th December 2024. Learned counsel for the respondents Mr. Mbura, who held brief for Mr. Fondo, relied entirely on the respondents’ written submissions dated 10th February 2025. 12.We have considered the appeal and the submissions, and re- appraised the evidence in keeping with our mandate under Rule 31(1)(a) of the Court of Appeal Rules. Bearing in mind that it is common course that Wilson Baya Nyundo is the registered proprietor of the property, the overarching issue for our determination is whether the appellants established their claim for adverse possession to the required standard. In other words, did the appellants establish the necessary ingredients of adverse possession. There are two other related issues for consideration, namely, whether the respondents’ suit was time barred, and whether the ELC granted reliefs which had not been sought by the respondents. 13.As to whether the appellants established their claim for adverse possession to the required standard, it was submitted that all legal requirements for adverse possession were established; that the appellants demonstrated that they were in continuous and uninterrupted occupation of the property from 1998 to 2017; that they constructed permanent stone houses, engaged in subsistence farming, and planted trees; that their occupation was open and evident as they lived there without secrecy for many years, a fact the respondents admitted to knowing as early as 2017; that they buried their relatives on the property in 2002 and 2010 without objection from the respondents and, hence, had exclusive possession and intention to own the property; and that their occupation of the property was without the consent or authorization of the registered owner. 14.Counsel for the respondents, on the other hand, submitted that the appellants failed to satisfy the legal prerequisites for adverse possession, specifically the principle of nec vi, nec clam, nec precario (possession without force, without secrecy, and without permission); that the evidence presented before the ELC indicated that the appellants occupied the property through force and threats, which directly contradicts the legal requirements for adverse possession. It was submitted that, while the property measures approximately 12.4 acres, the testimony before the trial court indicates that the appellants only occupied a small portion of the property and did not provide definite evidence, by way of a sketch for instance, of the specific area they claimed to possess; that, in any event, the suit filed by the registered owner before the Magistrate’s Court in 2000 where an order was made for vacant possession and eviction effectively interrupted the statutory period of 12 years; and that Wilson Baya Nyundo was the registered absolute owner of the property, and whose title is protected under the law. 15.On our part, we take the following view on the issue under consideration. As stated by this Court in the case of Lewa v Mwagandi (Civil Appeal 56 of 2014 [2015] KECA 532 (KLR), the doctrine of Adverse Possession is rooted in Section 7 (and 38) of the Limitation of Actions Act, which provides that an action to recover land may not be brought after the end of twelve years from the date on which the right of action accrued to him, or if it accrued to some person through whom he claims, that person. Section 38 is also pertinent. Makhandia, JA. summed up the nature of the doctrine in Lewa v Mwagandi as follows:“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 possessor is neither by force or (sic) 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.” 16.The conditions that a person asserting a claim for adverse possession must establish are well known. In the case of Mount Elgon-Beach Properties Limited v Kalume Mwanongo Mwangaro & another [2019] KECA 475 (KLR), for instance, the Court re-affirmed its earlier pronouncement in Samuel Kihamba v Mary Mbaisi [2015] eKLR that:“…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 force, without secrecy, 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 phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land. See Eliva Nyongesa Lusenaka & Anor v Nathan Wekesa Omacha Kisumu Civil Appeal No. 134 of 1993 (ur). These prerequisites are required of any claimant...” 17.It is also established that the possession by the person seeking to prove the title by adverse possession must be continuous, uninterrupted, and unbroken for the necessary statutory period. The possession must continue for the duration without interruption. Thus, “when determining a claim in adverse possession the court must consider two questions: firstly, whether the owner has been dispossessed openly or willingly and secondly whether the claimant has been in uninterrupted possession for 12 years with an intention to own the land.” See Kihamba v Mbaisi (Civil Appeal 27 of 2013) [2015] KECA 853 (KLR). Based on the foregoing, the learned Judge of the ELC was correct in stating in the impugned judgment that: “The occupation must be quiet, continuous, uninterrupted, without force for a period of 12 years.” 18.The appellants asserted that they took possession of the property in 1978. However, the property was not registered until 1998. Therefore, time could not have begun to run prior to the registration of Wilson Baya Nyundo as the owner of the property. In that regard, in the case of Watuko v Busolo & 3 Others (Civil Appeal 129 of 2017)[2022] KECA 171 (KLR), this Court cited the earlier decision in the case of Francis Gitonga Macharia v Muiruri Waithaka [1977]Civil Appeal No.110 of 1977 LLR (CAK) , where the Court held that: “Limitation period, for purposes of adverse possession only starts running after registration of the land in the name of the respondent.” Consequently, time would only have begun to run in favour of the appellants, as the learned Judge of the ELC correctly held, in 1998. 19.Moreover, time stops running when the owner asserts his right over the property. As stated in the case of Joseph Gahumi Kiritu v Lawrence Munyambu Kabura CA No. 20 OF 1993 cited by the Court in Watuko v Busolo(above), “assertion of right occurs when the owner takes legal proceedings or makes an effective entry into the land.” Similarly, in the more recent case of Njoroge (Appealing as representatives of the Estate of the Late Geoffrey Gikaru Njoroge) v Kenatco Transport Co Limited (In Receivership) (Civil Appeal E037 of 2021) [2023] KECA 1288 (KLR), this Court stated:“This Court in William Gatuhi Murathe v Gakuru Gathimbi Civil Appeal No 49 of 1996 held that time stops when the owner asserts his rights or when there is an admission by the other party and that assertion of rights occurs either when the owner takes legal proceedings or makes effective entry.” [Emphasis added] 20.In that regard, and as already stated, Wilson Baya Nyundo did assert his right over the property by instituting legal proceedings before the Magistrate’s Court, being Civil Case No. 56 of 2000, for the eviction of Kwekwe Kinda, under whose title the appellants’ claim. We therefore uphold the finding by the learned trial Judge that the appellants’ occupation was not continuous and was interrupted when Wilson Baya Nyundo filed suit for recovery of possession. 21.Furthermore, the appellants did not specifically identify the actual portion of the property they occupied. As held by this Court in the case of Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another [2015] KECA 728 (KLR), the identification of the land in possession of an adverse possessor is an important part of the process of proving adverse possession. The Court in that case reiterated the pronouncement in the earlier decision of the Court in Githu v Ndele [1984] KLR 776 that a person claiming adverse possession has the burden of proving and specifically identifying or even describing the portions, sizes and locations of the portions of the larger premises they seek to be decreed to them. 22.We turn next to consider the appellants’ contention that the suit instituted by Wilson Baya Nyundo before the ELC was time barred. In that regard, it was submitted that the final judgment rendered “is unsafe and unreliable” as the Judge failed to determine the Preliminary Objection regarding its jurisdiction to hear a time-barred claim. It was submitted that the appellants have lived on the property from 1978; that the property was registered in the name of Wilson Baya Nyundo in 1998, but that the legal action to recover it was not filed until 2017; that the period from the registration of the property in favour of Wilson Baya Nyundo to the time the suit was filed is in excess of 12 years and, hence, the claim was statute barred under Section 7 of the Limitation of Actions Act. It was submitted further that the learned Judge of the ELC erred in relying on the judgment of the Magistrate’s Court; that, apart from the fact that that judgment was in personam and did not bind the appellants, the Judge failed to appreciate that, by dint of Section 4(4) of the Limitation of Actions Act, that judgment, not having been executed, had become stale and unenforceable. 23.As regards the complaint that the preliminary objection was not determined, the record of proceedings of the trial court show that, on 20th February 2018, directions were given by Olola, J for parties to “file and exchange submissions on both the application dated 12/10/2017 and the preliminary objection dated 8/1/2018”, and the same were slated for hearing on 19th March 2018. Thereafter, following the death of Wilson Baya Nyundo, an application for his substitution was made and allowed by Olola, J without objection on 4th February 2020. Thereafter, pre-trial arrangements followed and the trial commenced without further mention by any of the parties of the pending preliminary objection or pending application. The record does not show that any of the parties thereafter made any reference to or drew the court’s attention to the pending preliminary objection. Given the course taken by the parties in that regard, the Preliminary Objection was forgone, the parties opting instead to proceed with the trial. In those circumstances, we do not think that the Judge can be faulted for not having determined the matter of limitation been raised in the preliminary objection. 24.Finally, there is the complaint that the Judge erred in granting reliefs that were not sought. In that regard, it was submitted that the reliefs sought by the respondents in the plaint was an order of permanent injunction and an order for vacant possession; and that the order of eviction which the ELC granted had not been sought. In support of the proposition that a court cannot grant reliefs not sought, the decision in Lamba v National Social Security Fund & another, (Civil Appeal No. E168 of 2021) [2023] KECA 124 (KLR) was cited. Counsel for the respondents on the other hand urged that the judgment of the ELC granting the respondents a permanent injunction and order for vacant possession was fair and well founded in law and that the appeal should be dismissed with costs. 25.It is trite that parties are bound by their pleadings and that the court should not go beyond the pleadings before it to give reliefs that have not been sought. See for instance Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat (2020) KECA 224 (KLR) where it was held that a trial court should refrain from determining issues not placed before it for determination. Similarly, in the case of Independent Electoral and Boundaries Commission & Another v Mule & 3 Others (Civil Appeal 219 of 2013) [2014] KECA 890 (KLR) it was held that parties are bound by their pleadings which in turn limited the issues upon which a trial court could pronounce. 26.In the present case, however, Wilson Baya Nyundo pleaded in paragraph 9 of the plaint that the appellants had despite demand “failed and or refused to vacate the…suit premises.” In addition to the prayer for permanent injunction, there was a prayer for “vacant possession.” Can it then be said that the learned Judge, veered off the pleadings in ordering the appellants “to give vacant possession within 45 days failure to which eviction to issue”? We do not think so. The provision for eviction to ensue in the event of default by the appellants to comply with the order to give vacant possession is in our view incidental and necessary to give effect to the judgment. 27.All in all, there is no merit in this appeal. It is accordingly dismissed with costs to the respondents. 28.Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF MAY 2026.S. GATEMBU KAIRU, FCIArb, CArb.………………………………………JUDGE OF APPEALDR. K. I. LAIBUTA, CArb, FCIArb.…………………………………JUDGE OF APPEALG.W. NGENYE-MACHARIA………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR