https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4820

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT KISUMU** **ELC (LA) E090 OF 2024** **MAURICE GABRIEL KEMBO………………………………………………………APPELLANT** **VERSUS** **GEORGE KIMUMA……………………………………………………………...RESPONDENT** **JUDGMENT** 1. Aggrieved by the Judgment and Decree of Hon. Amos Kiprop Makoross delivered on 07.11.2024 in MCELC E011 OF 2021 between Maurice Gabriel Kembo and George Kimuma, in respect to the jurisdiction of the Chief Magistrates Court, the Appellant Maurice Gabriel Kembo filed the Memorandum of Appeal dated 12.11.2024, and sought the following reliefs; 2. The appeal be allowed. 3. The judgment of the Honorable trial magistrate delivered on 07.11.2024 be set aside. 4. The costs of the appeal be paid to the Appellant by the Respondent. 5. The Appellant penned 11 grounds of Appeal; as follows; 6. That the learned magistrate erred in law and fact by relying on extraneous considerations and inferences and/or misapprehended the law in arriving at an erroneous decision against and without considering the facts and evidence on record. 7. That the learned magistrate erred in law and fact by appropriating himself jurisdiction to grant orders of adverse possession when in fact he had no jurisdiction to allow such orders. 8. That the Learned Trial Magistrate erred in law and fact when he found and held that the Respondent was and had been in adverse possession of the whole of the suit property for a period in excess of 12 years he having found and held in error that the Respondent was not a trespasser on the property. 9. The Learned Trial Magistrate erred in law and fact in finding and holding on the evidence led at the trial that the Appellant’s suit before the subordinate court was statute barred. 10. The Learned Trial Magistrate erred in law and fact in finding for the Respondent and making orders in favour of the Respondent against the Appellant in the absence of a counterclaim. 11. The Learned Trial Magistrate erred in law and fact when he misapprehended the issues that were before him for determination, the evidence led before him on those issues and the law. 12. The Learned Trial Magistrate misapprehended the Appellant’s pleaded case vis-a-vis the law. 13. The Learned Trial Magistrate erred in law and fact in failing to find and to hold that the Appellant’s claim before him was proven in law and in failing to grant all the reliefs sought. 14. The Learned Trial Magistrate decided the suit before him and granted orders against the weight of the evidence at the trial contrary to the law and all known principles. 15. That the Learned Magistrate erred in law and fact by dismissing the Appellant’s case entirely. 16. That the learned magistrate erred in law and fact in failing to consider the Appellant’s submission. 17. On the strength of the above grounds of Appeal, the Appellant sought for the reliefs set out at Paragraph 1 of this judgment. 18. Upon admission of the Appeal the court issued directions for disposal of the Appeal by way of written submissions which the court summarizes as herefollows; **Appellant’s Submissions** 1. The Appellant’s submission submits that the Learned Trial Magistrate delivered a judgment that was erroneous and devoid of any anchor in law and the same should be vacated as it were; and has framed the 2 issues for determination. 2. In which the Appellant submits that the Learned Trial Magistrate acted in excess of his jurisdiction when he made a determination that the Respondent herein had acquired the suit property by way of adverse possession. The Appellant posits that a claim for adverse possession can only be determined by a superior court and in particular the Environment and Land Court as provided under **Article 162 (2) (b) of the Constitution of Kenya (2010)**. The Appellant placed reliance on the decisions in the cases of **Pauline Chemuge Sugawara V Nairuko Ene Mutarakwa Kiruti & 3 others, Civil Appeal No. E141 of 2022, Biwott & another v Amin; Tanui (Interested Party)(Miscellaneous Application E004 of 2025) [2025] KEELC 3391 (KLR) (24 April 2025) (Ruling), Sugawara v Kiruti (Sued in her capacity as the administrator of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others [2024] KECA 1417 (KLR), Daniel Toroitich Arap Moi V. Mwangi Stephen Muriithi & Another [2014] eKLR, Christopher Kioi & another v Winnie Mukolwe & 4 others [2018] eKLR,** and **M’Mbaoni M’thaara Vs James Mbaka [CHUKA ELC NO. 110 OF 2017].** 3. The Appellant submits that the Learned Trial Magistrate erred in law and fact in failing to hold that the Appellant’s case before him was proven in law and failing to grant the reliefs sought. The Appellant posits that he proved that he was the registered and bonafide owner of the suit property relying on **Sections 107 (1), 109, and 112 of the Evidence Act (Chapter 80 of the Laws of Kenya)**, and **Sections 24, 25, and 26 of the Land Registration Act, No. 3 of 2012**. 4. The Appellant submits that the Costs in a matter follows the event and courts have not shied away from awarding costs to a successful party in proceeding relying on the case of **Cecilia Karuru Ngayu V Barclays Bank of Kenya & Another [2016] eKLR, Republic V Rosemary Wairimu Munene, Ex-Parte Applicant V Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review application no. 6 of 2014**. 5. On the strength of the above submissions filed by the Appellant, the Appellant sought that the Appeal be allowed with costs to the Respondent. **Respondent’s Submissions** 1. The Respondent did not file submissions. **Issues for Determination** 1. Having analyzed the Record of Appeal, the submissions filed by the Appellant and considered the law, the court frames the following as issues for determination 1. Whether or not the Appeal is merited? In determining this issue the court shall determine which between the plaintiff’s suit and the Defence ought to have been upheld by the trial court. 2. What reliefs ought to issue. 3. Who bears the cost of Appeal. **Analysis and Determination** 1. In exercise of its duties as a first Appellate court, the duties to “***reconsider the evidence, evaluate it and draw its own conclusion”*** as stated in Selle and Another Vs. Associated Motor Boat Limited and 3 Others. 2. The court has reviewed the Plaint dated 30.03.2021 that was before the trial court in which the Appellant as the plaintiff therein averred interalia; 3. The plaintiff is the registered proprietor of all that suit property known as Kisumu/Sidho East/1926 measuring 3.4 Ha, that in 2020 the plaintiffs discovered that the Defendant had in 2019 wrongfully and unlawfully entered into the suit property without any colour of right and erected illegal structures thereon, depriving the plaintiff of the use and enjoyment of the suit property occasioning loss and damage against the plaintiff. 4. Wherefore the plaintiff sought for an injunction against the Respondent and declaration to ownership of the suit property, as well as an order compelling the Defendant from removing the illegal structures. 5. The Defendant initially filed his own statement of Defence but upon instructing counsel an Amended statement of Defence was filed; in which he averred *interalia* that 6. The plaintiff’s title to suit property Kisumu/Sidho East/1926 was fraudulently obtained, and he pleaded particulars of fraud against the plaintiff, and further that the plaintiff’s title was revoked by virtue of a Grant issued to Lucy Anyango Otieno in 2009. 7. The Defendant pleaded adverse possession of suit land having been living thereon uninterrupted with quiet possession and peaceful enjoyment since 2001 and in the alternative pleaded that he was a bonafide purchaser for value having bought the land from one Patrice Juma Nandi for a consideration of Kshs.140,000/=. 8. The Defendant had pleaded a counter-claim in his original defence but in the amended defence the same was abandoned. 9. The Defendant sought for the dismissal of the plaintiff’s suit. 10. Upon review of the evidence, the trial court found that the plaintiff’s claim was statute barred and that the defendant had acquired proprietary rights by virtue of adverse possession thus provoking this Appeal. 11. At the outset, the court does not find it difficult to make a finding that the learned trial magistrate was right in making finding that eth Defendant had not proven that the plaintiff had acquired title fraudulently. 12. The evidence from both the plaintiff and the defence witness was that the plaintiff’s father Gabriel Onyango Otieno allocate the suit property and thereafter registered as the owner thereof and that the Plaintiff was the administrator of his Estate. 13. The learned trial magistrate however fell in error to determine the issue of adverse possession as was held in the case of Sugawara Vs. Kiruti (sued in her capacity as the administratix of Estate of Mutarakwa Kiruti Lepaso (Civil Appeal E141/2022 (2024)) KECA 1417 KCR and the ground of Appeal in that regard is merited. 14. On the issue of the suit being time barred, the trial court found that the entry was in 2001. The defendant stated that he had purchased the suit property from Patrice Juma Nandi. 15. Yet since Patrice Juma Nandi had no interest in the suit parcel the entry by the Defendant in 2001 was thus under a mistake of fact and therefore the provisions of section 7 of the Limitation of Actions Act could not apply. The discovery of the mistake was in 2019, when the defendant became aware of the Plaintiff’s interests, and thus changed the time for purposes of Limitation of Actions Act which started in 2019, hence the suit was not time barred by virtue of section 26(c) of the Limitation of Actions Act, which provides as follows; - ***“where, in the case an action for which a period of Limitation is prescribed, either.*** * 1. ***……………..*** 2. ***……………..*** 3. ***The action is for relief from the consequence of a mistake, the period of Limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it.”*** 1. I’m further guided by the decision by the Court of Appeal in the case of Alba Petroleum Limited Vs. Total Marketing Kenya Limited 2019 (KECA) 846 where the court interpreted section 26(c) of the Limitation of Actions Act. 2. At paragraph 46 and 49 of the said decision, the Court of Appeal observed as follows; - ***“46. The Appellant cited the dicta in Philip Higgras Vs. Harper (1954) IALLER, to support its submissions that there must be a prayer for relief from the consequence of mistake period we have analyzed this case and observe that the G.K House of Lords in Dulsche Morgan Grenfell Group LPLC Respondents Vs. Her Majesty Commission of Inland Revenue and Another (Appellants) 2006 G.K HL 49, held that a*** ***“Limitation period in a claim for mistake starts to run when the mistake is discovered”*** At paragraph 49 the court on to hold. ***“49. Persuaded by the foregoing dicta section 26(c) of the Limitation of Actions Act does not specify which party must have committed the mistake, it suffices that the court is satisfied a mistake of fact or law exists, and time begins to run when the mistake is discovered.”*** 1. By pleading at paragraph 14 and 12A of the Amended defence that the Defendant had bought from Patrice Juma Nandi and that the Plaintiff went to assert ownership in 2019, essentially the defendant was pleading the mistake of fact at paragraph 14 and the discovery thereof at paragraph 12A hence the suit was not time barred and the learned magistrate fell in error. 2. As between the plaintiff suit and the Defence suit, the plaintiff suit before the trial court was merited, as the Defendants defence did not hold water. 3. Thus, in answer to issue No. 1 the court finds that the Appellants Appeal herein is merited. 4. The court further notes that the title deed in respect of Kisumu/Sidho East/1926 was issued to the Appellant on 9th of February 2002, but it was subject to Kisumu High Court Succession Cause No. 465/2009 ostensibly in the Estate of Aloice Ayien Nandi; while at the time it was registered in the name of the Appellant who is still alive, the parties may need to move the succession Court the High Court for proper orders of rectification to avoid issuance of duplicity of titles in respect of the same parcel. This said issue was captured paragraph 7 of the impugned judgment. 5. On what relief ought to issue, 6. Having found that the Appeal is merited the court allows the same, in terms of prayers 1, 2 and 3 of the memo of Appeal and of prayers a, b and c, of the plaint. 7. The matter shall be remitted to the trial court for it to access the prayers for general and exemplary damages as sought in the plaint which were not considered by the trial court. 8. Costs of the Appeal are awarded to the Appellant, while the costs in the trial court shall be awarded by the trial court once it finalizes on the pending issue of the reliefs for General and exemplary damages. 9. Judgment accordingly. Dated at Kilgoris this 27th day of July, 2026 Hon. M.N Mwanyale Judge **In the presence of** CA –Sylvia/Gilbert Ms. Njeri h/b for Mr. Ochieng for Appellant N/A for Respondent