https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5319

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT CHUKA** **ELC LAND APPEAL CASE NO. E009 OF 2023** **ABRAHAM MUCHOMBA …………….……........…....1ST APPELLANT** **MONICA NCHERI …………………….…….……........2ND APPELLANT** **STEPHEN MURITHI ……………………..……..........3RD APPELLANT** **VERSUS** **BENSON MUCOMBA KIRUGURA …………….............RESPONDENT** **JUDGMENT** **Introduction** 1. This appeal challenges the Judgment of the Principal Magistrate Court at Marimanti (**Hon. Mbayaki Wafula - PM**) rendered on **23/11/2023** in **Marimanti PMC E & L Case No. E012 of 2020**. The key questions that arose for determination in the suit were: (i) Whether the appellants made out a tenable claim of ownership of land parcel number S. Tharaka/Tunyai “B”.344 (the suit land) through adverse possession and proved the said claim; and (ii) Whether the respondent proved his claim for an order of permanent injunction restraining the appellants and their agents against interfering with the respondent’s ownership, use, possession and occupation of the suit land.Invariably, this being a first appeal, this court is required to re-evaluate the pleadings and the evidence and make findings on the above issues in the context of the grounds of appeal as set out in the memorandum of appeal. Before I analyse and dispose the issues that fall for determination, I will briefly outline the background to the appeal; the grounds of appeal; and the parties’ submissions in the appeal. 2. Vide a Plaint dated 25/11/2020, the respondent sued the appellants in **Marimanti PMC E & L Case No 12 of 2020**. He sought a permanent injunction restraining the appellants and their agents against interfering with his ownership, use, possession and occupation of the suit land. He also prayed for an award of general damages. His case was that he was the registered proprietor of land parcel number Tharaka/Tunyai “B”/344 [hereinafter referred to as “the suit land”]. On 7/7//2020, without any colour of right or legal justification, the appellants trespassed on the suit land and committed various acts of trespass on it, which included: (i) cutting down various indigenous trees; (ii) clearing thickets and bushes on the land to make a farm; (iii) burning down the cut trees and bushes; (iv) making charcoal from the cut trees. He contended that the above acts by the appellants were unlawful and constituted an infringement on his right to land and had caused him loss and damage. 3. In response to the suit, the appellants filed a defence and counterclaim dated 18/01/2021 in which they contested the respondent’s claim. They averred that the title held by the respondent was fraudulently issued to the respondent in 2020. They added that the adjudication process that culminated in the respondent’s title was flawed and fraudulent, a consequence of which rendered the respondent’s title invalid. They contended that the 1st appellant [*Abraham Muchomba*] was the actual owner of the suit land, adding that they worked on the suit land for their subsistence. They averred that the respondent’s claim was not maintainable. 4. By way of counterclaim, they contended that they had acquired title to the suit land through adverse possession, adding that by dint of **Section 7** of the **Limitation of Actions Act,** the respondent’s title stood extinguished. Through their counterclaim, they prayed for: (i) a declaration that the 1st appellant had acquired title to the suit land through adverse possession; and (ii) an order directing the Land Registrar to cancel the respondent’s title and register the 1st appellant as proprietor of the suit land and issue him with a title. 5. In his reply to defence and defence to counterclaim dated 21/1/2021, the respondent denied the allegation that the process of land adjudication in **Tunyai “B”** was fraudulent and asserted that the process of land adjudication closed upon registration of all parcels in the adjudication section. The respondent added that the appellants’ counterclaim was frivolous and unmaintainable in view of the fact that all the steps involved in land adjudication were undertaken and the appellants did not challenge the respondent’s ownership of the suit land. 6. The respondent contested the appellants claim of ownership of the suit land trough adverse possession. Lastly, the respondent contested the jurisdiction of the Magistrate Court to entertain the counterclaim. 7. During trial, the respondent [the plaintiff] testified as **PW1**. He denied the allegation that his title was acquired fraudulently. He also denied the allegation that the appellants had constructed on the suit land. He led evidence by **Paul Nyamu** who testified as **PW2** and **Nyaga Konyia** who testified as **PW3**. The duo testified that the respondent was their neighbour. 8. The appellants [the defendants] led evidence by the 1st appellant who testified as **DW1**. He stated that the 2nd and 3rd appellants were his children. He confirmed that the respondent was his neighbour. He did not know the acreage of his land. He added that during land adjudication, he took a land ownership dispute to “*the tribunal*” after his land was subdivided and a portion of it given to the respondent. He did not have the verdict of the *tribunal*. He added that he was occupying the remaining portion which he identified as *parcel number 343*. He denied entering parcel number 344 and cutting trees on the said parcel. 9. DW2 stated that he knew all the parties to this appeal and described them as his neighbours. He stated that parcel number 343 belonged to the 1st appellant, adding that the 2nd and 3rd appellants lived on their father’s land (*the 1st appellant’s land*). 10. The 2nd and 3rd appellants testified as DW3 and DW4 respectively. They told the court that they agreed with the testimony of their father (1st appellant). 11. Upon receiving submissions, the trial court rendered the impugned Judgment in which it found that the respondent held a title which was not tainted by fraud, corrupt scheme, irregularity, unprocedurality or misrepresentation. On the appellant’s counterclaim, the trial court found that the “*question of adverse title needed a vesting order in terms of* ***Section 38*** *of the* ***Limitation of Actions Act****”*. Ultimately, the trial court allowed the respondent’s primary claim and condemned the appellant to bear costs of the suit. **Appeal** 1. Aggrieved by the Judgment of the trial court, the appellants brought this appeal, advancing the following three grounds of appeal: 2. ***The Learned Magistrate erred in law and in facts in failing to consider the evidence tendered by the appellants to the effect that their occupation and usage of L. R. S. Tharaka/Tunyai “B”/344 was time immemorial and as such they had obtained by adverse possession and Limitation of Actions Act.*** 3. ***The Learned Magistrate erred in law and in facts in failing to find that the appellants had acquired the suit land by way of constructive trust from the respondent.*** 4. ***The Learned Magistrate erred in law and in facts in deciding the entire suit against the weight of evidence***. 5. The appellants prayed for an order allowing the appeal and setting aside the Judgment of the lower court. **Appellants’ Submissions** 1. The appellants filed two sets of written submissions dated 25/3/2025 and 1/10/2025 through ***M/s L. Kimathi Kiara & Co. Advocates***. Counsel for the appellants identified the following as the three issues that fell for determination in the appeal: *(i) Whether the Learned Magistrate erred in law and in facts by failing to consider the evidence tendered by the appellants to the effect that their occupation and usage of Tharaka/Tunyai “B”/344 had been in possession under the Limitation of Actions Act (sic); (ii) Whether the trial court erred in law and facts by failing to find that the appellant had acquired the suit land by way of constructive trust from the respondent and; (iii) Whether the trial court erred in law and facts in deciding the entire suit against the weight of evidence*. 2. On whether the trial court erred in law and fact by failing to find that the appellants had acquired the suit property by way of adverse possession, counsel argued that the trial court erred by ignoring evidence that the appellants had acquired parcel number Tharaka/Tunyai ‘B’/344 through adverse possession. Counsel stressed that the appellants had openly and continuously occupied the suit land without permission, thereby dispossessing the true owner under the ***L*imitation of Actions Act**. Counsel relied on the case of ***Kasuve vs Mwaani Investments Limited & 4 Others (2002) KLR 184*** and ***Kimani Ruchire vs Swift Rutherfords & Co. Limited (1980) KLR* 10**. 3. Counsel submitted that adverse possession required proof of open dispossession and continuous occupation for 12 years with intent to own the land. Citing the case of ***Francis Gicharu Kariri vs peter Njoroge Mairu Civil Appeal No. 293 of 200***, ***Sisto Wambugu vs Kamau Njuguna (1983) KLR 172*** and ***Wanyuoike Gathure vs Beverly (1965) EA 514, 518, 519***, counsel argued that the appellants had been in exclusive occupation of the suit land before the respondent’s 2005 registration, thereby acquiring the land through adverse possession. 4. On whether the trial court erred in law and fact by failing to find that the appellant had acquired the suit land through constructive trust, counsel argued that the trial court erred by not finding that a constructive trust existed. Counsel submitted that the appellant’s decades- long and unchallenged occupation until 2020 created a legitimate expectation (*sic)*. Counsel relied on the case *of* ***Twalib Hatayan & Another vs Said Saggar Ahmed Al-Heidy & 5 Others (2015) eKLR*** and ***Mutsonga vs Nyati (1984) KLR 425***. 5. On whether the trial court erred in law and fact in deciding the suit against the weight of the evidence on record,, counsel argued that the trial court erred by relying on an incorrect 1/9/2020 registration date instead of 24/11/2006, which distorted adverse possession timelines, and by failing to properly consider the appellants’ oral documentary evidence on adverse possession and constructive trust. Counsel relied on the case of ***Jack J.A. Onong’no & Another vs Joseph Oyoo & Another (2020)eKLR***. 6. Counsel argued that the court erred by granting a permanent injunction against the appellants despite their residing on the suit land. Counsel relied on the case of ***Nguraman Limited vs Jan Bonde Nielsen & 2 Others (2014)eKLR***, ***Mrao Limited vs First American Bank of Kenya Limited & 2 Others (2003) KLR 125*** and ***Mitu Bell Welfare Society vs Kenya Airports Authority & Others (2021) eKLR***. **Respondent’s Submissions** 1. The respondent opposed the appeal through written submissions dated 4/10/2025, filed by ***Murango Mwenda & Company Advocates***. Counsel for the respondent identified the following as the three issues that fell for determination in the appeal: (i) Whether the Learned Magistrate erred in law and fact in failing to consider the evidence tendered by the appellants to the effect that their occupation and usage of parcel number **Tharaka/Tunyai ‘B’/344** was from time immemorial and as such they had obtained ownership by adverse possession and **Limitation of Actions Act**; (ii) Whether the Learned Magistrate erred in law and fact in failing to find that the appellants had acquired the suit land by way of constructive trust from the respondent, and; (iii) Whether the Learned Magistrate erred in law and fact in deciding the entire suit against the weight of evidence. 2. On whether the trial court erred in failing to consider the evidence tendered by the appellants on whether the suit land had been acquired by adverse possession, counsel submitted that although the trial court did not expressly state that it lacked jurisdiction to adjudicate the question of adverse possession, it properly considered the issue and held that the issue needed to be dealt with under Section 38 of the Limitation of Action Act. Counsel added that under Section 38 of the said Act, a magistrate court lacked jurisdiction to deal with questions of adverse possession. Counsel relied on the pronouncement in the case of ***Sugawara vs Kiruti (sued in her capacity as the administratrix of the estate of Mutarakwa Kiruti Lepaso and in her own capacity & 3 Others (2024) KECA 1417(KLR***). 3. On whether the trial court erred in failing to find that the appellants acquired the suit land under the doctrine of constructive trust, counsel argued that the trial court rightly dismissed the claim of constructive trust since it was not pleaded by the appellants. Counsel relied on the case of ***Independent Electoral and Boundaries Commission & Another vs Stephen Mutinda Mule & 3 Others (2014)eKLR*** *and in* ***Raila Amolo Odinga & Another vs IEBC & 2 Others (2017)eKLR****.* 4. On whether the trial court erred in deciding the suit against the weight of evidence, counsel submitted that the trial court properly weighed the evidence and found that it lacked jurisdiction to deal with issues of adverse possession Counsel urged the court to reject and dismiss the appeal. **Analysis and Determination** 1. The court has read and considered the original record of the trial court; the record filed in this appeal; the grounds of appeal; and the parties’ respective submissions. The court has also considered the legal frameworks and the jurisprudence relevant to the key issues that fall for determination in the appeal. Based on the memorandum of appeal, the key issues that fall for determination in this appeal are: (i) Whether the trail court erred in failing to find that the appellants had made out a tenable case and proved that they had acquired ownership of the suit land through adverse possession by dint of the provisions of the **Limitation of Actions Act**; (ii) Whether the trial court erred in failing to find that the appellants had made out a tenable case and proved that they had acquired ownership of the suit land from the respondent by dint of the doctrine of constructive trust; and (iii) Whether the respondent made out a case for the injunctive order that was sought in the primary suit. I will analyse and dispose the three issues sequentially in the above order. Before I do that, I will outline the principle that guides this court when exercising jurisdiction as an appellate court. 2. The principle upon which a first appellate court exercises jurisdiction is well settled. The principle was summarized by the Court of Appeal in the case of ***Susan Munyi vs Keshar Shiani [2013] eKLR*** as follows: ***“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all the evidence and arrive at our own independent conclusions.”*** 1. The above principle was similarly outlined in ***Abok James Odera t/a A. J. Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates (2013) EKLR*** as follows: ***“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”*** 1. Did the trial court err in failing to find that the appellants had made a tenable case and had proved that they had acquired the suit land through adverse possession? The common law doctrine of adverse possession has been legislated as part of Kenya’s statute law and is contained in **Sections 7** and **17** of the **Limitation of Action Act**. The tenor and import of the framework in the two sections is that, a registered land owner losses his title to a trespasser if the trespasser enters the land and remains in unchallenged possession of the land for an uninterrupted period of 12 years. 2. A party seeking declaratory and vesting orders pursuant to the doctrine of adverse possession is required to move the Environment and Land Court for adverse possession orders under **Section 38** of the **Limitation of Actions Act**. The Court of Appeal in ***Sugawara vs Kiruti (sued in her capacity as the administratrix of the estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso and in her own capacity) & 3 Others [2024] KECA 1417 (KLR)*** made a binding pronouncement to the effect that a magistrate Court does not have jurisdiction to entertain claims of adverse possession. Indeed, in his reply to defence and defence to counterclaim dated 21/01/2021 and filed on 28/01/2021, the respondent categorically pleaded at paragraph 9 that the trial court lacked jurisdiction to entertain the appellants’ case of adverse possession. Regrettably, the appellants elected to wish the question of jurisdiction away instead of taking steps to cause the dispute to be placed before a court seized of jurisdiction to deal with questions of both trespass and adverse possession. 3. In its disposal of the issue of adverse possession, the trial court stated thus: ***“The question of adverse title needed a vesting order in terms of Section 38 of the Limitation of Actions Act”*** 1. Given the above circumstances, I do not think the appellants have a proper basis for faulting the trial court for disregarding their defence and counterclaim of adverse possession. It is the appellants who elected to wish the issue of jurisdiction away. 2. Had the trial court been seized of jurisdiction, it would have been expected to establish the exact date when the suit land was registered in the name of the respondent as a culmination of the land adjudication exercise. There could not have been adverse possession prior to or during land adjudication. 3. Consequently, the court’s finding on the first issue is that the appellant did not make out a tenable claim of ownership of the suit land through adverse possession. 4. Did the trial court err in failing to find that the appellants had acquired the suit land under the doctrine of constructive trust? I have carefully gone through the pleadings that were before the trial court. The appellants never pleaded the issue of constructive trust. Neither did they raise the issue in their written submissions before the trial court dated 4/9/2023. They introduced the issue as a ground of appeal through their memorandum of appeal dated 11/12/2023. Put differently, this was not an issue that fell for determination by the trial court. Consequently, the trial court did not err in failing to determine the issue. 5. Not too long ago, the Supreme Court of Kenya emphasized the centrality of pleadings in Kenya’s civil legal system in ***Raila Amolo Odinga & Another vs IEBC & 2 Others (2017) eKLR*** in the following words: ***“In absence of pleadings, evidence if nay, produced by the parties, and cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on pleadings…”*** 1. The prevailing law is that parties are bound by their pleadings. The appellants having failed to plead and ventilate the issue of constructive trust in the trial court, they have no basis for faulting the trial court for its failure to make a pronouncement on the issue. Consequently, this court has not found fault in the trial court’s failure to find that the appellants had acquired the suit land under the doctrine of constructive trust. 2. Did the respondent make out a case for the injunctive order that he sought in the primary suit? The respondent demonstrated that he was the adjudicated and registered owner of the suit land. The appellants termed the adjudication exercise as fraudulent but did not establish any element of fraud. They did not give any satisfactory explanation as to why they ignored the redress mechanisms under the land adjudication laws. They pleaded adverse possession in a court that did not have jurisdiction to entertain the plea and defence of adverse possession. Despite the respondent raising the issue of jurisdiction, they did not bother to take steps to place their plea before a competent court. 3. Given the above circumstances, this court is satisfied that the respondent properly proved that he was entitled to the protection afforded to him by **Article 40** of the Constitution and **Sections 24**, **25**and **26** of the **Land Registration Act**. Put differently, the respondent made a proper case for the injunctive relief. 4. On costs of this appeal, the general principle in **Section 27** of the **Civil Procedure Act** is that, costs follow the event. There is no proper basis to justify a departure from the general principle. Consequently, the appellants shall bear costs of this appeal. **Disposal Orders** 1. Having evaluated the pleadings, the evidence and the submissions that were before the trial court; and having considered the grounds of appeal and the submissions that were tendered in this appeal, I do not find merit in the appeal. The appeal is rejected and dismissed for lack of merit. The appellants shall bear costs of the appeal. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF AUGUST, 2026.** **B. M. EBOSO [MR]** **ELC JUDGE** **In the presence of**: Mr Murimi holding brief for Mr Murango Mwenda for the Respondent Appellant – Absent Mr E Tupet – Court Assistant