Azhar s/o Mohammed Akram (Deceased) v Singh & 4 others (Civil Appeal 23 of 2019) [2026] KECA 1130 (KLR) (12 June 2026) (Judgment)

Azhar s/o Mohammed Akram (Deceased) v Singh & 4 others (Civil Appeal 23 of 2019) [2026] KECA 1130 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1130 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 23 of 2019 DK Musinga, JO Okello & P Lilan, JJA June 12, 2026 Between Mohammed Azhar s/o Mohammed Akram (Deceased) Appellant and Hardev Kalsi Singh 1st Respondent The Estate of Ilam Din s/o Ilam Dim (Deceased) 2nd Respondent Estate of Mohamed Aslam s/o Ilam Din (Deceased) 3rd Respondent Asgiri d/o Ilam Din 4th Respondent Mohammed Akhtar 5th Respondent (Being an appeal from the Judgment of the Environment & Land Court of Kenya at Nairobi (J.M. Mutungi, J.) dated 23rd July, 2015 in ELC Case No. 186 of 2012) Judgment 1.This appeal arises from a Record of Appeal dated 23rd January, 2019 where the appellant is dissatisfied with the whole judgment dated 23rd July, 2015 and has set out sixteen grounds of appeal in the memorandum of appeal. The grounds of appeal are summarised thus: that the learned Judge erred in both law and fact by —a.failing to examine the terms upon which the 1st respondent occupied L.R. No. 209/4931/21 on account of his admission of how his occupation came about;b.in failing to establish when the 1st respondent’s occupation of L.R. No. 209/4932/21 satisfied the debt owed to the 3rd respondent in order for the adverse possession period to commence;c.in failing to find that service upon the 2nd, 3rd, 4th, and 5th respondents by way of newspaper advertisement was defective owing to the fact that they were and are resident out of Kenya denying them an opportunity to be heard;d.in finding that the 1st respondent acquired title over L.R. No. 209/4932/21 by virtue of adverse possession to the shares of the 2nd, 3rd, 4th and 5th respondents when the 1st respondent’s occupation by his own admission only related to the share of the 2nd respondent; the learned judge erred in failing to find that there can be no adverse possession by the 1st respondent to the shares of the 2nd, 3rd, 4th and 5th respondents since the 1st respondent’s occupation was not within the knowledge of the 2nd, 3rd, 4th and 5th respondents being the other tenants in common over L.R. No. 209/4932/21;e.in failing to determine the effect on the 1st respondent’s claim for adverse possession of the expiry of the original grant of lease over L.R. No. 209/4932/21 and whether the 1st respondent’s claim for adverse possession was successful in respect of the original grant of lease, which expired on 1st July, 2003 or the new grant of lease commencing 1st July, 2003 over L.R. No. 209/4932/21;f.in failing to determine whether the 2003 lease extension carried out by the Government over L.R. No. 209/4932/21 in favour of the appellant, 2nd, 3rd, 4th and 5th respondents was void by virtue of its declaration that the 1st respondent had acquired title by adverse possession;g.in finding that failure to join the estate of the 3rd respondent would not defeat the 1st respondent’s case; the learned judge erred in both fact and law in finding that the 1st respondent has proved adverse possession in absence of exclusive occupation of L.R. No. 209/4932/21 by the 1st respondent on account of Business Premises Rent Tribunal Case Number 147 of 2012, Mohamed Azhar vs Balvirs Kalsi;h.in failing to find that there was a tenant relationship between the 1st respondent and the appellant in light of the persistent and consistent personal or through legal counsel demands for rent or vacant possession from the appellant; the learned Judge erred in both fact and law in finding that the 1st respondent’s occupation of L.R. No. 209/4932/21 was peaceful in light of the appellant’s persistent attempts to obtain vacant possession of L.R. No. 209/4932/21 or formalize the tenancy relationship;i.in failing to take into account that it is the appellant who has continually paid all the land rents in relation to L.R. No. 209/4932/21 and the 1st respondent would be unjustly enriched through the land rents paid by the appellant; the learned Judge erred and failed to take into account the credibility of the 1st respondent on account of the 1st respondent’s lie under oath by claiming to have filed HCC 3490 of 2012 (OS) in the Matter of L.R. No. 209/4932/21 Nairobi – Hardev Kalsi Singh vs Ilam Din & Others;j.in failing to consider the evidence on record and the submission of the appellant which disproved the 1st respondent’s claim for adverse possession, which failure occasioned a miscarriage of justice;k.in directing the Registrar of Titles to register L.R. No. 209/4932/21 in the name of the 1st respondent; andl.in directing the Deputy Registrar of the Court to execute all the appropriate documents to vest L.R. No. 209/4932/21 in the 1st respondent. 2.The appellant’s prayers are that the appeal be allowed, the judgment dated 23rd July, 2015 be set aside and costs be awarded to the appellant. 3.To put the appeal in context, we shall give the background, albeit in a summary way. The 1st respondent by way of an originating summons dated 5th April, 2012, moved the trial court for a declaration that LR. 209/4931/21 Nyuki Close Nairobi (hereinafter referred to as “the suit property”) be deemed to belong to him under adverse possession, that he be registered as the owner of the suit property, that a permanent injunction be issued against the applicant and his agents restraining them from levying distress or trespassing onto the suit property in breach of the respondent’s rights as owner in adverse possession, that an order be issued directing the Land Registrar to register the suit property in favour of the respondent, and costs of the suit be awarded to him. 4.From the record, the 1st respondent moved into the suit property in 1987. At the time, the property was registered in the name of one Ilam Din son of Umar Din, Mohamed Aslam son of Ilam Din, Asgiri daughter of Ilam Din, Mohamed Aslam in his capacity as trustee of Mohamed Akhtar (a minor), Ilam Din son of Umar Din in his capacity as trustee of Mohamed Azhar son of Mohamed Akram (a minor). At the time of filing the suit, the suit property was registered in the names of Ilam son of Umar Din, Mohamed Aslam son of Ilam Din, Asgiri daughter of Ilam Din, Mohamed Akhtar son of Mohamed Akram and Mohamed Azhar son of Mohamed Akram as per the certificate of title dated 25th August, 2008. The 1st respondent avers that he moved into the suit property forcefully after Mohamed Aslam failed to pay back his monies. He contends that he has been in possession and sole occupation of the suit property, paying all rates and utility bills. The 1st respondent further stated that he had never had any dealings with the appellant until sometimes in 2012 when the appellant filed a suit seeking among other things, rent amounting to 15,000,000/- for the last 25 years. He further states that the appellant being aware that the 1st respondent was in possession of the suit property, instructed his lawyers to levy distress for kshs 31,470,000/= being purported rent arrears from 1988 to March, 2012. He states that on 30th March 2012, Muhatia Pala Auctioneers trespassed on the suit property and levied distress on his goods. 5.The appellant on the other hand states that he is an equal share owner of the suit property. That he believes that the 1st respondent has been a tenant brought onto the suit property by Mohamed Aslam s/o Ilam Din, and that he has written severally, either personally or through his advocate, to the 1st respondent seeking rent or vacant possession of the suit property. 6.The trial court identified a single issue for determination, that is, whether adverse possession of the suit property by the 1st respondent had been proved on a balance of probability. By judgment of the trial court, the originating summons dated 5th April, 2012 was allowed with the following orders —a.That the 1st respondent had acquired title to the suit property by virtues of being in adverse possession for a period in excess of 12 years;b.The Registrar of titles to register the suit property in the name of the 1st respondent in place of the appellant, the 2nd, 3rd 4th and 5th respondents;c.The Deputy Registrar of the Court was authorized to execute all appropriate documents necessary to vest the suit property in the name of the plaintiff; andd.Each party to bear their own costs of the suit. 7.Aggrieved by that decision, the appellant lodged the instant appeal before this Court. He filed his notice of appeal dated 24th December, 2018. He also filed his memorandum of appeal dated 23rd March, 2019 that raised the sixteen grounds stated above, disputing the findings of the trial court. 8.The appeal was heard virtually on 2nd March, 2026. Learned counsel Mr. Buluma C.N. appeared for the appellant. He relied on his submissions dated 26th April, 2025 and supplementary submissions dated 9th January, 2025 and also made oral highlights of the submissions. There was no appearance for the respondents, neither did they file any written submissions. The Court was satisfied that service was effected upon all the parties. 9.According to the appellant, the main issue in this appeal is whether the requisite elements to prove adverse possession to confer prescriptive title have been met, or whether the trial court misconstrued the relevant laws and facts. 10.Regarding the issue of acquisition of title to land by virtue of being in adverse possession for a period of 12 years, the appellant’s counsel submitted that the trial court failed to acknowledge the fact that the 1st respondent had admitted in his affidavit in support of his originating summons that he had personally been in possession of LR 209/4931/21 since 1987 when he forcefully moved into the premises after Mohammed Aslam failed to pay back monies that he had lent him. To the appellant, the 1st respondent got into possession of the suit property forcefully and therefore a cause of action cannot arise from an illegality. The appellant’s counsel submits that the admission of use of force by the 1st respondent extinguishes the application of the doctrine of adverse possession. 11.The appellant’s counsel further submits that that possession must not be by dint of leave, license, tenancy and permission. He avers that the trial court failed to appreciate this aspect and did not acknowledge the evidentiary documentation that the appellant brought before the trial court for consideration. To support his case, the appellant relies on the case Mbaruk vs Gadim & Another, Civil Appeal E122 of 2022 [2025] eKLR. Counsel for the appellant further submitted that rent demands dating back to 1988 that were addressed to the 1st respondent were never met and this led to the appellant activating distress proceedings. He avers that the distress proceedings were evinced by the Notice of Proclamation by the auctioneers distressing the 1st respondent for unpaid rental arrears is dated 30th March, 2012 and was a culmination of the Reference to the Business Premises and Rent Tribunal by the appellant. He concludes by observing that the upshot of this was that the 1st respondent was a mere licensee/tenant on the suit premises being granted permission to rent the premises under the Landlord and Tenant (Shops, hotels and catering establishments) Act, Cap 301. The appellant relies on the case of A M Sheriff vs Mohammed Nona Laila (Ceylon) [1968] UKPC 12 where the court held that possession has to be totally unaccompanied by payment or demand of rent or demand notices as provided under Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act, Cap 301. 12.The appellant prays that this appeal be allowed, that a declaration be made that the prescriptive right and title ensuing from the decision of the trial court be reversed, that the Land Registrar be directed to ensure that title for the suit property is reverted back to the appellant, 2nd, 3rd, 4th and 5th respondents and all other subsequent entries be cancelled, that in the alternative, the 1st respondent compensate the appellant, 2nd, 3rd, 4th and 5th respondents for the value of the suit property at the current market value, and that the appellant also be granted mesne profits accrued from illegal possession by the 1st respondent on the property to be paid to the appellant, 2nd, 3rd, 4th and 5th respondents. 13.The appeal is not opposed because the respondents did not file any submissions. 14.This is a first appeal, therefore, this Court’s mandate as a first appellate court is settled as being re-hearing or retrial of the case based on the material on record. This duty is provided for in rule 31(1)(a) of the Court of Appeal Rules (2022) which requires this Court to re-examine both issues of law and fact. While this Court has the power to arrive at its own independent decision, we must exercise caution and be slow to overturn a trial court’s findings of fact because we did not have the advantage of seeing or hearing the witnesses. In Gitobu Imanyara & 2 others vs Attorney General [2016] eKLR, the Court observed thus;“..being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial 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 witnesses and should make due allowances in this respect.” 15.We must also be guided by the Court of Appeal for East Africa decision in Peters vs Sunday Post Limited [1958] EA page 424, where the court stated that:“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.” 16.Bearing in mind rule 31(1)(a) of the Court of Appeal Rules (2022) and the plethora of authorities in this area, we will only overturn a trial court’s finding if it is shown to be clearly wrong, or if the judge failed to take into account material circumstances or probabilities. 17.We have carefully considered the record of appeal, the grounds of appeal, the submissions and the law. We discern a single issue for determination, to wit, whether the trial court erred by holding that the 1st respondent acquired title to LR No. 209/4931/21 (the suit property) by virtue of adverse possession. All other issues relate to this primary question. 18.The law on adverse possession is well settled in Kenya. The law allows a person to acquire title to land after twelve years of uninterrupted, open, and hostile occupation, as provided for under section 13 of the Limitation of Actions Act, Cap 22. Indeed, the doctrine of adverse possession avails where land owned by a person is claimed by a trespasser on the basis that he trespassed on the land with the knowledge of the landowner. The trespasser thus occupies the land adversely to its title continuously and uninterruptedly for a period of not less than 12 years. Eventually, the order for adverse possession made in favour of a trespasser is enforceable against a person registered as proprietor whose title is extinguished by reason of adverse possession. See Mwalimu & 6 Others vs Halal & Another, Civil Appeal No. E036 of 2023 [2025]. 19.We start by addressing the issue of whether the learned judge erred by holding that the respondents acquired title to the suit property by virtue of being in adverse possession for a period of over twelve years. The appellant’s position is that the ingredients of adverse possession were not specifically met. The appellant submits that the possession must be actual, continuous, open, notorious, exclusive, and hostile. He avers that since the 1st respondent’s entry was forceful, based on an alleged debt owed to a 3rd respondent, the entry was not peaceful. Further, that the suit property having been registered in the name of the appellant and the other four respondents as tenants in common, the other tenants in common were not excluded in possessing the property. 20.In this case, the appellant contended that the 1st respondent entered the suit property forcefully on the basis of an outstanding debt. He further contends that there was no quiet enjoyment since there were several demands for rent which culminated in the filing of a suit before the Business Rent Tribunal in 2012. From the record, it is not disputed that the 1st respondent moved into the land in 1987 and the very first time that a suit was filed in court was 25 years later. On this issue, the trial court stated on page 12 of the judgment:“The applicant stated that he moved into the suit premises in 1987. The 5th respondent in his replying affidavit did not particularize when the applicant took possession and averred that it was after the 2nd respondent was deported from Kenya a decade ago. The applicant however annexed in his affidavit, an affidavit sworn in Tribunal case no. 147 of 2012 by the 5th respondent where he contended that the applicant in this case had refused and/or neglected paying rent for over 25 years.It is therefore the Court’s findings that the applicant has been in actual, open and exclusive occupation of the suit property for a period of more than 12 years envisaged by section 7 of the limitation Act.” 21.It is clear that the trial court considered the evidence placed before it and arrived at the conclusion that the 1st respondent had actual, exclusive, open and quiet possession of the suit property for over twelve years. The entry was without permission. Hostile entry does not necessarily mean with aggression or conflict. As long as the entry is without permission or consent of the registered owner, it is hostile. We see no reason to interfere with the trial court’s finding on that issue. 22.The appellant has further averred that there cannot be adverse possession against the 2nd, 3rd, 4th and 5th respondents, who were co-owners, the property having been owned under a tenancy in common arrangements, and thus they continued to demand for rent. That this therefore negated forceful entry. Suffice it to say that tenancy in common being a form of ownership where two or more individuals hold distinct, undivided shares in a property, the doctrine of adverse possession allows a trespasser to claim legal ownership of land if they possess it openly, continuously and without permission of the co-owners for a statutory period of 12 years and above. A co-tenant in peaceful possession is presumed to possess it on behalf of all the co-tenants. Adverse possession, therefore, in this case succeeds even against the other co-owners since there was no permission or otherwise granted to the 1st respondent. 23.Did the appellant assert his rights so as to interfere with the continuous occupation by the 1st respondent? The law in this area is settled. The assertion of right must involve either the regaining of entry to the land by the owner or the commencement of a suit whose substance is to regain possession. Any other suit by the owners that is not for purpose of regaining possession of the property would be ineffective in stopping the running of time. In the instant case, there was no such assertion of rights. The appellant stated that over the years he had written to the 1st respondent demanding rent or vacant possession to no avail. He further states that he instituted proceedings in BPRT case No. 147 of 2012 seeking to recover rent and further, that he instructed auctioneers to levy distress for rent. Curiously, the suit to recover rent and the ultimate levying of distress came in 25 years after the 1st respondent had been in exclusive possession of the suit property. The trial court observed in page 13 of its judgment thus:“The BPRT case instituted by the 5th defendant to recover rent is not a suit to regain possession and would therefore be ineffective to stop the running of time. The correspondences annexed by the 5th defendant in his replying affidavit as “MA 4” could also not stop time from running in favour of the applicant in light of the decision in the case of Githu vs. Ndete (1984) KLR 776 that giving notice to quit cannot be effective assertion of right for purposes of stopping the running of time under the Limitation of Actions Act. At any rate as at the time the 5th respondent commenced the actions to reassert his ownership or right to the suit property, the period of 12 years had lapsed and the applicant had acquired a right to the property through adversity.” 24.The right to adverse possession begins on the day the unauthorized occupation begins. The occupier may lay claim to the property if the occupier maintains this control for a continuous statutory period of 12 years. Once the 12 years pass without the owner asserting their rights, evicting the occupier, or initiating a court action, the original owner’s title is extinguished and the occupier can apply for ownership. In the instant case, the appellant purported to assert his right 25 years after the occupation. The hostility therefore commenced 13 years after the occupier’s right had matured and the 1st respondent was therefore right in instituting adverse possession proceedings. Mere verbal objection or informal, unpeaceable re-entry onto the land is legally insufficient to stop the 12-year limitation period. the allegation that the 1st respondent was a tenant who was paying rent, was never substantiated. Even the allegation that the 1st respondent was owed money was never substantiated, even if that was the catalyst for moving into occupation. Once again, the trial court held, rightfully so, that the 1st respondent’s occupation was not permissive and was without consent of any of the co-owners of the suit property. We are persuaded that the 1st respondent’s occupation was without the consent of the co- owners over a period exceeding 12 years and was therefore adverse. 25.Our re-evaluation of the evidence leads us to the same conclusion arrived at by the trial court: the 1st respondent established the required standard of proof that he was in occupation of the suit property of land from 1987 after he moved in and made improvements on the land. The 1st respondent proved that he stayed on the suit property for over 12 years openly, notoriously, exclusively and without permission of the registered owners and with the intention of owning it. The appellant did not lay any claim over the suit property nor did he attempt to take possession of the same from the 1st respondent. We cannot, in the circumstances, fault the trial court for reaching the decision that the 1st respondent had acquired title in respect of the suit property by adverse possession. 26.Thus, having considered the record of appeal, the impugned judgment, the parties’ submissions, the highlight by counsel, the authorities cited and the law, we are persuaded that this appeal lacks merit. This Court in Kenga & 12 Others vs Mohamed [2025] KECA 2219 (KLR), succinctly outlined the elements that must be established for a claim of adverse possession to succeed. It stated—“…a claimant must demonstrate the following elements: the date of entry— when possession of the land commenced; the nature of possession – whether it was exclusive, open, and adverse; knowledge by the true owner that such possession was being exercised; duration of possession; that it continued for at least 12 uninterrupted years; open and undisturbed occupation— that the possession was without secrecy, permission, or interruption (nec vi, nec clam, nec precario – meaning without force, without secrecy, and without permission).” 27.The instant case meets the above laid down principles. It is not in dispute that the 1st respondent took actual possession of the suit property in 1987 with the full knowledge of the registered owners and was in occupation of the same till 2012 when the appellant filed a claim for rent. He was in exclusive possession of the same and made improvements on the said suit land. By the time the appellant was trying to assert his rights over the suit property that is in March 2012, 25 years had lapsed and the right to title had crystallized and accrued in favour of the 1st respondent. Further, the possession was without secrecy. The appellant clearly slept on his rights. The feeble attempts to assert his claim through rent demands did not amount to assertion of an owner’s right as to be recognized by law. Equity cannot come to the aid of the indolent appellant. Consequently, we find that this appeal lacks merit. 28.In conclusion, we find that the appeal is without merit and is hereby dismissed. We uphold the trial court’s judgment. Each party shall bear its own costs of the appeal. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE, 2026.D. K. MUSINGA (PRESIDENT)..........................................JUDGE OF APPEALPAUL LILAN......................................JUDGE OF APPEALDR. J. O. OKELLO......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.