https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1575

Mwaganda & 2 others (Both sued as the Personal Representatives of Francis Gambo Begambo (Deceased)) v Awadh (Civil Appeal E071 of 2023) [2026] KECA 1575 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1575 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E071 of 2023 J Mohammed, KI Laibuta & GW Ngenye-Macharia, JJA July 31, 2026 Between Gilbert Mwaganda 1st Appellant Mulongo Gambo Mwagambo alias Mlango Gambo 2nd Appellant Muye Gambo Mwagambo alias Muye Gambo 3rd Appellant Both sued as the Personal Representatives of Francis Gambo Begambo (Deceased) and Said Mbarak Awadh Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court of Kenya at Mombasa (N. A. Matheka, J.) delivered on 21st February 2023 in ELC Case No. 197 of 2008 Consolidated with ELC Case No. 22 of 2018 Environment & Land Case 197 of 2018 ) Judgment 1."There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." So says Sir William Blackstone, Commentaries on the Laws of England, Book II, Chapter 1 (1766). It is this grounding philosophy that moved William Pitt the Elder to pen these glowing thoughts on the Inviolability of One's Land Against All Comers: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter! All his forces dare not cross the threshold of the ruined tenement." (William Pitt the Elder, Earl of Chatham, Speech in the House of Lords (1763), as recorded in Lord Brougham's Statesmen in the Time of George III (1839) 2.Before us is an appeal in pursuit of justice in a bid to enforce what the appellants perceived as their right to property. The appeal arose from the judgment and decree of the Environment and Land Court (the ELC) at Mombasa (N. A. Matheka, J.) delivered on 21st February 2023 in ELC Case No. 197 of 2008 as consolidated with ELC Case No. 22 of 2018. 3.The precis of the dispute culminating in the instant appeal is that the respondent (Said Mbarak Awadh) filed suit against the 1st appellant (Gilbert Mwaganda) and one Francis Gambo Begambo (now deceased) in ELC Case No. 197 of 2008 vide a plaint dated 6th August 2008 and amended on 12th August 2008. The respondent’s case was that he was the registered proprietor of all that parcel of land known as Plot No. 1640 (Original No. 427/32)/Section III/Mainland North (the suit property) measuring 3.34 hectares in the approximate and held under a freehold title without any encumbrance; that the suit property originated from a larger parcel, Plot No. 427/32/III/MN, which previously belonged to one Sheila Norton; that the said property was subsequently subdivided and distributed to various beneficiaries of her estate; and that he purchased his portion from two of the beneficiaries, following which the land was duly surveyed, subdivided, and a certificate of title issued to him together with a Deed Plan No. 167849 delineating its boundaries and beacons as registered by the Director of Surveys. 4.The respondent averred that the 1st appellant and the late Francis Gambo Begambo, without any lawful claim, consent or justification, interfered with the beacons and boundary marks on his land; that the 1st appellant and Francis Gambo Begambo (the deceased) encroached onto approximately two and a half acres of the suit property, erected a semi-permanent iron-sheet structure used as a church, and permitted other persons, including relatives, friends and church members, to occupy and further trespass onto the land, thereby depriving him of possession and enjoyment of part of his property; and that, although there had been previous litigation in the High Court concerning the original parcel, the specific cause of action relating to the interference with the suit property had not been the subject of any previous proceedings. 5.By reason of the matters aforesaid, the respondent prayed for judgment against the 1st appellant and the deceased (the defendants therein) for the following orders:“a)A Permanent injunction to restrain the Defendants by themselves, their servants, employees, relatives, friends or any other person from interfering with the original beacons, boundary marks delineating the boundaries of plot No. 1640/Section III/Mainland North and a further injunction order restraining the Defendants by himself, his friends, servants, employees or members of his church or any other person whomsoever and whatsoever from encroaching and or trespassing into the Plaintiffs property Plot No. 1640/III/Mainland North.b)An order directing the Registrar of Titles and the District Land Registrar Kilifi, Provincial Surveyor and District Land Registrar Mombasa to establish the exact position of the original beacons in their correct position and so establish the entire boundaries of the Plot No. 1640/Section III/Mainland North so as to secure the Plaintiffs 3.4 hectares which is approximately 8 acres.c)An order of eviction of all the trespassers on the Plaintiff’s land by way of demolition and removal of any illegal structures on the suit property at their cost.d)Costs of the suit.” 6.The 1st appellant and the deceased jointly filed a Statement of Defence dated 4th September 2008, generally denying the respondent’s claim in its entirety and putting him to strict proof of all the allegations contained in the plaint. They specifically denied that the respondent was the lawful proprietor of the suit property as pleaded, as well as the particulars relating to its subdivision, survey and certificate of title; and further denied having interfered with any beacons or boundary marks, or having unlawfully occupied or encroached upon the suit property as alleged. 7.In addition, the 1st appellant and the deceased averred and maintained that the respondent’s claim was time barred as they, together with their families, had been in occupation and possession of the suit property for a period exceeding twelve years during which they had developed the land. On that basis, they contended that any claim by the respondent for recovery of the land was statute-barred under section 7 of the Limitation of Actions Act. They further maintained that the respondent had no valid cause of action against them, and that the suit was misconceived and untenable. They therefore prayed that the respondent’s suit be dismissed in its entirety with costs. 8.While ELC Case No. 197 of 2008 was still pending, the respondent filed another suit, namely ELC Case No. 22 of 2018, vide a plaint dated 1st February 2018, against 13 defendants (namely 9 alleged trespassers, the Chief Land Registrar, the County Land Registrar Kilifi, the Director of Surveys and the County Surveyor Kilifi) over the same suit property and containing identical allegations of interference with the beacons placed on the suit property, trespass thereon and unlawful occupation of two-and-a-half acres thereof. The respondent also sought orders similar to those sought in his suit against the 1st appellant and the deceased in ELC Case No. 197 of 2008. 9.In their Statement of Defence dated 13th July 2018, the 1st to 9th defendants generally denied the allegations as set out in the respondent’s plaint. They averred that they had occupied, stayed and/or resided on the suit premises for over 12 years without anyone’s permission, authority and/or consent; that their occupation of the land had been continuous, open, public, uninterrupted and adverse to the rights and/or interest of the registered owner; and that the claim was therefore time-barred under section 7 of the Limitation of Actions Act; and that the claim ought to be dismissed with costs and orders of adverse possession issued in their favour in line with section 38 of the Act. 10.The hearing of the respondent’s suit against the 1st appellant and the deceased commenced on 4th December 2018. On 1st October 2019, after the respondent had closed his case, and while the matter was still at the defence hearing, the respondent applied to have the suit consolidated with ELC Case No. 22 of 2018 relating to the same subject matter. The court allowed the application and the two suits were consolidated with orders that they be heard together. 11.The defence hearing proceeded with the deceased testifying on 21st October 2020, but passed away in December 2020, whereupon he was substituted for the 2nd and 3rd appellants (Mulongo Gambo Mwagambo and Muye Gambo Mwagambo), who were joined as defendants therein on 16th May 2022 in their capacity as personal representatives of the deceased’s estate. The defence case closed on 13th October 2022. 12.In its judgment dated 21st February 2023, the ELC (N. A. Matheka, J.) found that the respondent held a valid certificate of title over the suit property, which constituted prima facie evidence of absolute and indefeasible ownership under and by virtue of sections 24 and 26 of the Land Registration Act; and that there was no proof of fraud, misrepresentation, illegality, or procedural impropriety to warrant impeachment of the respondent’s title. The court accepted the respondent’s evidence that he had lawfully purchased the land, which was vacant at the time of purchase. The learned Judge further observed that his certificate of title and deed plan predated those relied upon by the defendants in the consolidated suits. 13.The court further found that the appellants’ claim of long occupation of the suit property had not displaced the respondent’s title, or otherwise established a valid claim of adverse possession. According to the learned Judge, it was not clear whether the parcels claimed by the appellants overlapped with the respondent’s land, and emphasized that the respondent’s deed plan remained valid and had not been cancelled. Accordingly, the trial court concluded that the respondent had proved his case on a balance of probabilities, and that he was a bona fide purchaser for value. Consequently, it entered judgment for the respondent as prayed in the consolidated suits. 14.Aggrieved by the learned Judge’s decision, the appellants moved to this Court on appeal vide a Memorandum of Appeal dated 12th May 2023 on the following albeit needlessly argumentative grounds against the grain of rule 88 of the Court of Appeal Rules, 2022:“1)THAT the learned Judge erred in law and in fact by allowing the Respondent’s suit(s), yet there was evidence to the effect that the said suit(s) was time barred under the statutes.2)THAT the learned Judge erred in law and in fact by not appreciating that the documentary evidence produced by the Appellants was to the effect that there had been long occupation by the Appellants on the suit premises, being Plot No. 1640/Section III/Mainland North (Original No. 427/32/III/MN) and not that there was any sub-division of the suit premises, creating the certificates of titles and the deed plans produced by the Appellants and further that the proceedings in HCCC No. 83(OS) of 1994 (Mombasa), which led to the sub-division of the original parcel of land were commenced by the Appellants’ father in law and/or husband and/or father, the late Gambo Mwagambo Ndago, now deceased and thus evicting the Appellants from the suit premises would be subjecting them to desolation and/or misery as they would be rendered homeless, yet the claim is time barred as the proceedings of 1994 were based on occupational and/or possessory rights as of that time. 3)THAT the learned Judge erred in law and in fact by not appreciating the Appellants’ evidence, including the pleadings which clearly had stated that the Appellants were in actual and/or physical occupation or possession of the suit premises in 1994 and even before as evidenced vide the proceedings of 1994, above mentioned. 4).THAT the learned Judge erred in law and in fact by allowing the suit(s), yet she had doubt as to whether the suit premises mentioned by the parties in the pleadings is the same or different parcels of land, which said doubt should have been returned in favour of the Appellants. 5).THAT the learned Judge erred in law and in fact by misdirecting herself when she made findings to the effect that the suit premises was sub-divided to create titles in favour of the Appellants, yet there was no evidence tendered to that effect as the Certificates of titles produced by the Appellants did not originate from the suit premises or the Certificate of title of the suit land as clearly shown in the Appellants’ certificates of titles and deed plans. 6).THAT the learned Judge erred in law and in fact by allowing the suit against the Appellants herein as well as the suit filed against the 1st to 9th Defendants in ELC No. 22 of 2018, yet no evidence was tendered against them as the consolidation of this matter with ELC No. 197 of 2008 was done after the Respondent had tendered evidence against the Appellants alone on 4th December, 2018 as the Consolidation orders were issued on 1st October, 2019 thus no evidence was tendered against the said Defendants who are now affected by the eviction orders. 7).THAT the learned Judge erred in law and in fact by allowing both suits as consolidated, yet the subsequent suit, being ELC No. 22 of 2018 against the aforementioned 9 Defendants was clearly time barred if the Respondent’s evidence was to stand as it was filed in the year 2018, yet the evidence of the Respondent is that the Appellants and their relatives entered the suit land in 1997 after the Respondent had bought the suit land in the same year. Counting from the year 1997 to 2018 when the subsequent suit was filed, there is a period of 21 years and consequently therefore, the claim against the Defendants in ELC No. 22 of 2018 was admittedly time barred. 8).THAT the learned Judge erred in law and in fact by not appreciating the fact that the Appellants were entitled to orders of adverse possession in respect of the suit premises as their defence was based on the law of limitation and therefore erroneously dismissing the Appellants' Defence.” 15.On the foregoing grounds, the appellants sought orders that the appeal be allowed by setting aside the impugned judgment and substituting therefor an order dismissing the respondent’s suit with costs; and an order that the appellants be registered as proprietors and/or owners of the suit property by way of adverse possession. 16.This Court’s mandate on 1st appeal was espoused in Ng’ati Farmers’ Co-Operative Society Ltd v Ledidi & 15 Others [2009] KLR 331 in the following words:“An appeal to this Court from a trial by the High Court is by way of re-trial 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 witness and should make due allowance in that respect. In particular, this Court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 17.The mandate was also underscored in the case of Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212 as follows:“On a first appeal from the High Court, the Court of Appeal should 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 allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 18.In doing so, we are conscious as cautioned by the predecessor to this Court in Peters v Sunday Post Ltd [1958] EA 424 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.” 19.In our considered view, the main issues that commend themselves for our determination are: (i) whether the learned Judge was at fault in failing to find that the consolidated suits were time- barred, and that the appellants were entitled to the suit property under the doctrine of adverse possession; (ii) whether the learned Judge was at fault by allowing the suit against the 1st to 9th defendants in ELC Case No. 22 of 2018; and (iii) whether the learned Judge erred in allowing the consolidated suits in the face of uncertainty as to whether the suit properties pleaded by the parties were the same or different parcels of land. 20.In support of the appeal, learned counsel for the appellants, M/s. Kenga & Company, filed written submissions and a list of authorities dated 30th September 2025 and 28th January 2026 respectively. 21.In rebuttal, learned counsel for the respondent, M/s. Opulu & Co., filed written submissions, a list of authorities dated 24th September 2025 as well as further submissions, a further list of authorities and a case digest dated 3rd January 2026. 22.On the 1st issue as to whether the consolidated suits were time- barred; and whether the appellants were entitled to the suit property under the doctrine of adverse possession, it is noteworthy that the learned Judge did not address herself to the issue as to whether the consolidated suits were statute-barred by virtue of section 7 of the Limitation of Actions Act. 23.Upon finding that the respondent was the registered proprietor of the suit property, the learned Judge proceeded to hold that:“PW1 the Plaintiff testified that he bought the suit land 3 acres from Kahindi Baya and 5 acres from PW2 in 1997. At the material time the land was vacant but later the Defendants encroached and have refused to vacate. PW2 the said Stanley Mwanzia Mulango corroborated the Plaintiff’s evidence… DW1 Gilbert Mwaganda testified that he has lived on the suit land for 21 years. That the said Kahindi was a neighbor. He was invited by his in-law Gambo Bigambo and he bought land there… DW2 Gambo Bigambo the 2nd Defendant stated that his father worked for a European who on leaving the country decided to award the workers a portion of the land. His father was a beneficiary and he was born on that land and has not encroached. Each shareholder was given 8 acres and some portions do not have titles…I have perused the documents produced before this court and find that the Plaintiff’s deed plan is dated 23rd October 1992 PEx2 and his certificate of title April 2004 PEx1. Indeed, reports from the Land Dispute Tribunal seem to suggest that it was a boundary issue and that the Plaintiff was the legitimate owner of the suit land. The deed plan produced by the defence is dated 22nd September 1997. Their certificates of titles for the Defendants to wit No 3403, 3400, 3402 (original number 427/67) Section 111 Mainland North are dated 22nd May 2012 (DEx 1 -6). It appears to me the Plaintiff’s land was long subdivided and title issued before the same was done later for the Defendants. It is not clear to this court whether or not we are talking of the same land and /or whether there is an overlap. The Plaintiff’s deed plan was never cancelled and still stands. I find that the Plaintiff was a bona fide purchaser for value. I find that the said suit land was vacant at the time of purchase and the title was obtained legally. I find that the Plaintiff has established his case on a balance of probabilities….” 24.Taking issue with the learned Judge’s decision, counsel for the appellants advanced several grounds in support of the appeal. They submitted, first, that the respondent's own evidence demonstrated that he had no knowledge of the appellants’ occupation and possession of the suit premises until on or about 25th November 1997 when he sought the intervention of the Land Dispute Tribunal to establish whether the appellants were trespassers. Counsel contended that, crucially, the respondent never asserted that the appellants had entered the suit premises in 1997, and that it was therefore erroneous for the trial court to make a finding that the land was vacant at the time of purchase in that year. 25.Counsel further submitted that the respondent's own account was beset with material uncertainty as to the subject matter of his claim. According to the respondent, he had purchased two parcels of land totalling five acres on an unspecified date — being the land that was the subject of the proceedings before the tribunal — and thereafter acquired a further parcel measuring three acres on 14th October 1997, which latter portion had not been the subject of adjudication before the tribunal. Counsel argued that the respondent was unable to identify with any degree of certainty which of the two portions had allegedly been encroached upon, and that this ambiguity was fatal to his case. 26.In contrast, counsel submitted that the appellants had adduced clear and consistent evidence that their father-in-law and father, respectively, had entered the suit premises as far back as 1981 and had never relinquished vacant possession thereof. This position, they urged, was supported by documentary evidence placed before the court. 27.On the law, counsel submitted that, in proceedings for vacant possession over land, a defendant need only raise a defence founded on limitation where he or she has been in occupation of the suit land for a continuous period exceeding twelve years without the permission, consent, or authority of the registered owner, for the court to be seized of jurisdiction to grant an order for adverse possession. In this regard, counsel placed reliance on the decision of this Court in Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] KECA 248 (KLR) for the proposition that an order for adverse possession may properly be made where a defendant satisfies the court, through a defence grounded in limitation, that he or she is entitled to such relief. 28.Counsel concluded by submitting that the respondent's suit ought to have failed on the additional basis that it was filed outside the statutory limitation period of twelve years, particularly in light of the respondent's own admission that the appellants, as well as the defendants in ELC Case No. 22 of 2018, were at the material time in actual and physical occupation and possession of the suit land. 29.On their part, counsel for the respondent advanced the following submissions in opposition to the appeal. They drew the Court’s attention to the fact that the appellants had themselves placed before the court copies of the decree issued in Mombasa High Court Miscellaneous Civil Application No. 208 of 2001 (OS) in which the respondent and the other plaintiffs therein had been granted orders for the subdivision of their respective portions of the original land parcel No. 427/III/MN, and for the issuance of title documents. Counsel submitted that, by producing and relying upon that decree, the appellants had unequivocally acknowledged the respondent's right, interest and title to the suit property; and that they were therefore estopped from turning around to invoke the provisions of the Limitation of Actions Act in pursuit of a claim for adverse possession. 30.Counsel further submitted that the acknowledgement of the respondent's title was not confined to the appellants only; that the other parties in the subsequent suit had, in their evidence, conceded that they held no title deed to the respondent's land, and had admitted to being trespassers; and that, by operation of section 25 of the Limitation of Actions Act, such an acknowledgement of title is binding upon all persons in possession during the ensuing period of limitation. 31.On the question of limitation, counsel submitted that it is trite law that the institution of court proceedings concerning ownership of land has the effect of stopping time from running for the purposes of sections 7 and 17 of the Limitation of Actions Act. In this regard, he pointed to the respondent's evidence of the proceedings before the Land Disputes Tribunal in LDT No. 59/97 in which a verdict was delivered on 20th November 1997. Counsel further urged that the trial court had made a finding of fact, as affirmed by a similar finding of the Land Disputes Tribunal, that the suit land was vacant and unoccupied by the appellants at the time of the respondent's purchase, and that this Court ought not to disturb those concurrent findings. 32.Counsel additionally submitted that the appellants had failed to discharge a fundamental evidential requirement in claims of adverse possession, namely, the specific identification of the respective sizes and locations of the portions they allegedly occupied. They submitted that neither the documents produced nor the evidence adduced at trial contained any such particularisation, and that this lacuna was fatal to the appellants' claim. In support of this proposition, counsel placed reliance on the decisions of this Court in Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another [2015] KECA 728 (KLR); Chigamba & 2 others v Noormohamed & 8 others [2022] KECA 535 (KLR); and Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] KECA 402 (KLR), which collectively affirm that the precise identification of the land in the possession of an adverse possessor is an important and integral component of the process of establishing adverse possession. 33.Finally, counsel submitted that the appellants’ claim was fundamentally inconsistent with, and incompatible with, the doctrine of adverse possession. The appellants, he urged, were asserting a claim of right over the land on the basis that it had belonged to their father, Gambo Mwagambo Ndago, rather than grounding their claim in the doctrine of adverse possession. As such, they did not wholly and unreservedly recognise the respondent's title, a concession that is a prerequisite to any claim founded on adverse possession. Their claim, counsel submitted, was therefore self-defeating on its own terms. Counsel further contended that a claimant invoking the doctrine of adverse possession must make an unqualified admission of the unimpeachable title of the registered owner before becoming eligible for consideration under that doctrine, and that the appellants had conspicuously failed to do so. They concluded by submitting that a claim advanced as beneficiaries of an estate under the law of succession is wholly irreconcilable with a claim of ownership under the doctrine of adverse possession, and that the two cannot lawfully co-exist. 34.The background facts as they emerged from the evidence on record may be summarised as follows. The suit property was a subdivision of the original plot No. 427/III/MN, which was previously owned by one Sheila Norton. Upon her decision to return permanently to her homeland, Sheila Norton offered the land to her workers. By a letter dated 2nd February 1981, the District Commissioner, Kilifi District, wrote] to Hime & Zimmerlin Registered Surveyors requesting a survey of the original plot and setting out a list of beneficiaries as approved by Sheila Norton. The portion comprising the suit property was allocated to one Kahindi Baya, who sold five acres thereof to one Hadi Swaleh. Hadi Swaleh subsequently exchanged those five acres for another property belonging to one Stanley Mwanzia Mulango, who in turn sold the five acres to the respondent in 1997. In the same year, the respondent purchased the remaining three acres directly from Kahindi Baya. 35.The respondent testified as PW1 and produced a Certificate of Title issued on 8th April 2004, a Deed Plan issued on 23rd October 1992, and an official search in proof of his ownership of the suit property. He stated that the land was vacant when he took possession, and that, some six to seven months thereafter, the defendants encroached upon the property by interfering with the beacons and occupying approximately two and a half acres. He deposed that he consequently instituted proceedings before the Land Disputes Tribunal in Case No. LDT/59/97 on 25th November 1997 against one Charo Chogo, and that the Tribunal, by its decision dated 27th November 1997, found the respondent to be the legitimate and lawful owner of the suit property. 36.The respondent called two further witnesses in support of his case. Stanley Mwanzia Mulango (PW2) confirmed that he had sold the suit property to the respondent in 1997, and testified that the land was vacant at the time of sale. Abdalla Salim Bates (PW3) stated that he had acted as the middleman and witness to the sale of the suit property by the original allottee, Kahindi Baya, to Hadi Swaleh, and that the property was vacant at the time of that transaction in 1992. He added that the family of the 1st appellant, who resided in the vicinity, had been hostile towards Hadi Swaleh. 37.On behalf of the appellants, the 1st appellant testified as DW1.He stated that he had lived on the land for twenty-one years; that his father-in-law, Gambo Begambo, was among the beneficiaries of the original plot owned by Sheila Norton; and that Kahindi Baya was a neighbouring allottee. In support of his case, the 1st appellant produced a court order issued by the High Court on 12th December 1994 in Mombasa HCCC No. 83 of 1994 (OS), which upheld the beneficiary list and survey map prepared in 1981 and declared Gambo Mwagambo Ndago and Gari Kombe to be lawful beneficiaries entitled to a portion of the original plot No. 427/III/MN. The 1st appellant also produced a decree issued by the High Court on 11th February 2002 in Mombasa Miscellaneous Civil Application No. 208 of 2001 (OS), a matter filed by thirty-four applicants, among them the respondent herein and Gambo Mwagambo Ndago, ordering that the original plot be subdivided into individual portions as set out in the application, and that each applicant be issued with a separate title document. 38.The deceased witness, Francis Gambo Begambo (DW3), testified that his father, Gambo Mwagambo Ndago, had worked for the owner of the original plot, and that he was a beneficiary entitled to eight acres thereof; that the family held titles to four and a half acres, with certain portions remaining untitled; and that he and his family had been born and had lived on the land throughout their lives. He was 58 years of age at the time of giving evidence. He identified the 1st to 9th defendants in the subsequent suit ELC No. 22 of 2018 as his relatives, and noted that Kahindi Baya was a neighbour who was likewise entitled to eight acres of the original plot. In support of his evidence, the deceased produced Certificates of Title for Subdivision Nos. 3403 (Original No. 427/68), 3400 (Original No. 427/65) and 3402 (Original No. 427/67), all of Section III Mainland North, issued to Gambo Mwagambo Ndago on 22nd May 2012 together with corresponding Deed Plans dated 22nd September 1997. 39.Under cross-examination, DW3 acknowledged that a surveyor had been engaged; that sixteen beacons had been placed on the ground; and that the titles held by his family had been issued after the title and deed plan for the suit property had been issued. He further conceded that he did not know the precise location of plot No. 1640 and, on re-examination, he clarified that he had not been shown any evidence to establish that plot No. 1640 and his family's land were one and the same. 40.The 1st defendant in ELC Case No. 22 of 2018, Victor Gogo Mwaganda (DW4), testified on behalf of the 1st to 9th defendants in that suit. He stated that the defendants had been born and raised on the suit premises as grandchildren and beneficiaries of the late Gambo Mwagambo, who had been issued with title deeds following the High Court order in Mombasa HCCC No. 83 of 1994 (OS); and that they had lived on the suit premises for over twelve years without the consent or authority of any other person. He contended, on that basis, that the respondent's suit was time-barred. Under cross- examination, he conceded that he had no knowledge of how the respondent had come to obtain a title to the suit property. 41.Having carefully considered the evidence adduced by both parties as set out hereinabove, two distinct but related contentions emerge from the appellants' case. First, it is contended that the respondent's claim as against the 1st to 9th respondents in ELC Case No. 22 of 2018 is irredeemably statute-barred, having been instituted well beyond the period prescribed by law. Second, and in the alternative, the appellants urge that, even if the suit were otherwise competent, they have, by dint of long, open, and uninterrupted possession of the suit land, acquired a good title thereto under the doctrine of adverse possession — a title which equity and the law alike ought now to recognise and confirm. 42.Section 7 of the Limitation of Actions Act, Cap. 22 provides for limitation of actions to recover land in the following words:7.Actions to recover landAn action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. 43.Section 9(1) of the Act clarifies when the right of action to recover land accrues after dispossession or voluntary discontinuance of such possession, and reads:9.Accrual of right of action in case of present interest in land(1)Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action accrues on the date of the dispossession or discontinuance. 44.Section 13(1) of the Act lends further clarity as to when the right of action accrues as against a party in adverse possession of the suit property. It reads:13.Right of action not to accrue or continue unless adverse possession(1)A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land. 45.The foregoing statutory edicts, read together, prescribe the governing legal framework within which the appellants' limitation and adverse possession contentions must be resolved. Section 7 of the Limitation of Actions Act, Cap. 22 erects an absolute bar against any action to recover land brought after the expiry of twelve years from the date on which the right of action first accrued, whether to the claimant personally or to a predecessor through whom the claimant derives title. Section 9(1) of the same Act fixes, with precision, the moment at which that clock begins to run: it is the date on which the person entitled to the land was dispossessed, or the date on which that person voluntarily discontinued possession, whichever first occurs. Section 13(1) further conditions the accrual of any right of action upon the existence, at the material time, of a person in whose favour the limitation period can run, that is to say, a person in adverse possession of the land, and makes plain that time does not begin to run at all unless and until such adverse possession has in fact commenced. It is against this tripartite statutory framework that the competing claims of the parties in the present appeal fall to be weighed and ultimately determined. 46.It must be borne in mind, though, that certain eventualities stop time from running in favour of a defendant who asserts limitation of action under and by virtue of section 7 of the Act in proceedings to recover land. In Mwangi Githu v Livingstone Ndeete [1980] KECA 35 (KLR), Potter, JA. held thus:“Time ceases to run under the Limitation of Actions Act either when the owner asserts his right or when his right is admitted by the adverse possessor. Assertion of right occurs when the owner takes legal proceedings or makes an effective entry into the land; see Cheshire’s Modern Law of Real Property, 11th edition at p 894.” 47.In our considered view, it cannot properly be contended that the respondent's subsequent suit was statute-barred. The respondent had, at an earlier stage, already invoked the jurisdiction of this Court by instituting proceedings in ELC Case No. 197 of 2008 wherein he sought injunctive relief and eviction orders, not merely against the appellants, but also against the appellants' relatives (who are none other than the 1st to 9th defendants in the subsequent suit) as well as against the appellants' associates and all persons found to be in unlawful occupation of the suit property. The institution of those earlier proceedings had the legal effect of interrupting the running of time within the meaning and intent of the Limitation of Actions Act. Accordingly, the respondent cannot be said to have slept on his rights. Consequently, the appellants’ attempt to invoke the statute bar under section 7 of the Act fails. 48.Turning to the appellant’s claim of adverse possession, the respondent aptly demonstrated, on a balance of probabilities, that the suit property was vacant when he purchased it in 1997; and that it was only after his acquisition of the property that the appellants and their co-defendants gradually encroached upon it and erected structures thereon. 49.Addressing itself to the question as to when time starts to run in support of a claim in adverse possession, this Court thus held in Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others (supra):“ 18)Likewise, it is settled that a person seeking to acquire title to land by of adverse possession must prove non permissive or non-consensual, actual open, notorious, exclusive and adverse use/occupation of the land in question for an uninterrupted period of 12 years as espoused in the Latin maxim, nec vi nec clam nec precario. See Jandu vs. Kirplal & Another (1975) EA 225.In other words, a party relying on the doctrine bears the burden of demonstrating that the title holder has lost his/her right to the land either by being dispossessed of it or having discontinued his possession of it for the aforementioned statutory period. See this Court’s decision in Wambugu vs. Njuguna [1983] KLR 173 …. 19)In computing the requisite statutory time, the date on which a party entered possession without consent of the title holder is of significance. It is from that date that the requisite time frame begins to run ….” 50.On the other hand, the appellants and their co-defendants failed to demonstrate that the land which they claimed to have occupied all their lives fell within the boundaries of the suit property, namely Plot No. 1640 (Original No. 427/32)/Section III/Mainland North. Put differently, they failed to establish any nexus between the suit property and their Certificates of Titles, which were for parcels derived from completely different subdivisions of the original mother parcel, namely Original Nos. 427/65, 67 and 68. They also failed to identify or describe with specificity the location and acreage of the respective portions of the suit property which they claimed to have occupied. 51.The need to identify with particularity the property claimed to have been occupied in adverse possession was underscored by this Court in Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another (supra) where the Court held that:“The identification of the land in possession of an adverse possessor is an important and integral part of the process of proving adverse possession. This was so stated by this Court in the case of Githu v Ndele [1984] KLR 776. The appellants did not discharge the burden of proving and specifically identifying or even describing the portions, sizes and locations of those in their respective possession from the larger suit premises that they sought to have decreed to them.” 52.It is further instructive that, upon a careful examination of the pleadings and evidence adduced by the appellants and the co- defendants, their claim to the suit property rested principally upon their alleged status as relatives or beneficiaries of one Gambo Mwagambo Ndago, a person said to have been entitled to an 8-acre portion of the original parcel. 53.That being the foundation of their claim, it is at once apparent that a plea of adverse possession could not be sustained alongside their alleged beneficial interest as claimed. The two positions are fundamentally irreconcilable: a party who derives his occupation from succession or from the express or implied permission of one whom he acknowledges as the true owner cannot, in the same breath, assert that he has dispossessed that owner by the effluxion of time. The appellants’ occupation, properly characterised, was at all material times either permissive in nature or rooted in a claim of succession premised on the proposition that Gambo Mwagambo Ndago, and not the respondent, was the rightful owner of the suit property. Such an occupation is wholly incompatible with the animus possidendi that adverse possession demands. 54.In similar circumstances, the Court in Susan Moss v Silas Siele Stephen & another [2018] KECA 597 (KLR) observed that:“The respondents entered into the land through their father who was claiming a purchaser’s interest of part of 225 acres. After the death of their father, the respondents continued to claim the land as personal representatives of their deceased father ….The respondents could not have been in possession of the land in two capacities, as individuals independently of the possession of their father and as personal representatives of the estate of their deceased father. Furthermore, the claim of adverse possession could not run parallel to claim of land and possession by virtue of purchase.” 55.In the same vein, in Harrison Ngige Kaara v Gichobi Kaara & another [1997] KECA 406 (KLR), this Court observed that:“… the appellant's case as pleaded was that he originally owned 4 acres of L.R. No. Inoi/Kaitheri/154. Evidence was however adduced in the court below to the effect that the appellant's father was the first registered owner of that parcel of land. There was no documentary evidence adduced to show that the appellant ever owned that land or any part thereof. The appellant himself admitted under cross examination that his father was the owner of that parcel of land and that after his death, he, the appellant, caused the Land Registrar of the area where the land falls to commence succession proceedings before the District Magistrate's Court, at Kerugoya. He also admitted that he took part in the proceedings which culminated in a consent order being recorded to the effect that that land would be shared equally between his father's two widows. So, as at the date of the succession cause the appellant did not consider himself to be entitled to the land or any part thereof as an adverse possessor. He was claiming a share of it as a beneficiary of his deceased father's estate.” 56.In Mbui v Maranya [1993] KEHC 161 (KLR), Kuloba, J. emphasized on the non-permissive aspect of adverse possession thus:“(4)The non-permissive actual possession hostile to the current owner must be unequivocally exclusive, and with an evinced unmistakable animus possidendi, that is to say, occupation with the clear intention of excluding the owner as well as other people. Exclusive possession means that the exercise of dominion over the land must not be shared with the disseised owner, the land being in actual possession with intent to hold solely for the possessor to the exclusion of others. A person in possession of land is not entitled to the protection of the statute of limitations as against the owner of the paper title where the latter and his predecessors in title have not been kept dispossessed or have not abandoned possession of the land for the statutory period and the person claiming the protection of the statute has been in possession with an animus possidendi for the requisite time. It must be shown that the owner has ceased to be in occupation and that the claimant is and has continuously been in occupation. An owner ceases to be in occupation of land by reason of dispossession or discontinuance of possession ….” 57.We hasten to observe that this position finds firm support in the afore-cited authorities. As observed in Susan Moss v Silas Siele Stephen & another (supra), a party could not simultaneously assert adverse possession in his own right and claim the land as a personal representative of a deceased predecessor who had entered the land as a purchaser, the two capacities being mutually exclusive. Similarly, this Court in Harrison Ngige Kaara v Gichobi Kaara & another (supra) rejected a plea of adverse possession where the appellant had, by his own conduct, invoked the succession process and participated in proceedings for the distribution of his late father's estate, thereby acknowledging that his entitlement, if any, was as a beneficiary rather than as an adverse possessor. The underlying principle is that adverse possession demands unequivocal, exclusive, and non-permissive occupation accompanied by an unmistakable animus possidendi — that is, a clear and hostile intention to hold the land to the exclusion of the true owner. Accordingly, a party whose occupation is derived from, or is consistent with, a claim of inheritance or succession necessarily lacks that hostile intent, and cannot therefore avail himself of the doctrine of adverse possession. 58.In conclusion, and on the authority of the afore-cited cases, we find that the learned Judge cannot be faulted for declining to find that the respondent’s subsequent suit was time-barred, or that any of the defendants’ (the appellants’) claim to the suit by adverse possession was merited. 59.Turning to the 2nd issue as to whether the learned Judge was at fault by allowing the respondent’s suit against the 1st to 9th defendants in ELC Case No. 22 of 2018, counsel for the appellants submitted that the respondent was required to adduce evidence in respect of the other parties in the subsequent suit, more so because the respondent, while testifying, did not adopt his subsequent suit or state that the orders sought in ELC No. 197 of 2008 were to apply to the subsequent suit. According to counsel, the orders of consolidation of the two matters made on 1st October 2019 were in no way endorsing the respondent’s evidence tendered on 4th December 2018 to apply to the subsequent suit. 60.Counsel further submitted that no evidence was tendered to support the respondent’s pleadings in the subsequent suit which, in any case, did not plead as to when the alleged trespass commenced. Counsel therefore contended that the respondent failed to prosecute the subsequent suit as required under sections 107, 108 and 109 of the Evidence Act and that, therefore, it was a fatal omission on the part of the respondent not to adduce evidence against the defendants in ELC Case No. 22 of 2018 on the purported ground that he was relying on the evidence already on record, yet the said evidence did not touch on the defendants in that subsequent matter, and more so having been taken before the consolidation orders were made. 61.Assuming that the respondent’s evidence against the appellants before consolidation of the suits can be treated as evidence against the defendants in ELC Case No. 22 of 2018, counsel urged that the respondent’s testimony was that the appellant’s entry into the suit premises was in the year 1998; that the subsequent suit was filed 20 years later in 2018 and was a clear admission that the subsequent suit was time-barred. Counsel cited the case of King'ara & another v Njonge & another [2025] KECA 489 (KLR) for the proposition that a party must prove their case against each defendant, and that a generalized claim without specific proof should not stand. 62.In rebuttal, learned counsel for the respondent submitted that the order for consolidation was made with the full concurrence of the advocates for all parties, and that no application was ever brought to review or set aside that order; that the matter thereafter proceeded unimpeded to full trial, and the appellants raised no objection, nor interposed any impediment, to the completion of the hearing; and that, having acquiesced in the consolidation order throughout the entirety of the proceedings below, the appellants are ill-placed to take issue therewith at this point in time. 63.Counsel further submitted that, in any event, the consolidation order forms no part of the judgment or decree that is the subject of this appeal, and cannot, properly speaking, be impugned in these proceedings. 64.In conclusion, counsel drew our attention to the pleadings in the consolidated suits and submitted that it is telling that the appellants themselves, together with the 1st to 9th defendants in ELC No. 22 of 2018, expressly aver in their own pleadings that the subsequent suit concerned the very same suit premises and involved the very same parties or parties through whom they respectively claimed. According to counsel, that concession, made on the face of their own pleadings, speaks volumes and substantially undermines the appellants' present contention. 65.We take to mind the Supreme Court’s decision in Law Society of Kenya v Centre for Human Rights and Democracy & 12 others [2014] KESC 29 (KLR) where the Court elucidated on the rationale underlying consolidation of suits and observed:“ 43)The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes, and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it. In the matter at hand, this court would have to be satisfied that the [matters] sought to be consolidated turn upon the same or similar issues. In addition, the court must be satisfied that no injustice would be occasioned to the respondents if consolidation is ordered as prayed.” 66.In the same vein, this Court had this to say in Anne Wambui Githuri v Makfam Investments Limited & 2 others [2015] KECA 478 (KLR):“ 10)The main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. Delaying or postponing the hearing of one suit to commence after the other when the subject matter in dispute is the same and competing interests are involved in the different suits does not save time. The test is not whether the parties are different; the test is whether the same or similar questions of law or fact are involved in the suits (See Ean Kenya Limited – v- John Sawers ____ & 4 others [2007] eKLR).” 67.It is instructive that both of the appellant’s suits involved the same subject matter and, save for the joinder of the lands and survey officials in the subsequent suit, involved defendants who expressly admitted that they were relatives and members of the same family. The plaints and defences in the two suits were identical, and the pleadings filed in response by both sets of defendants in the two suits raised similar defences. Accordingly, the learned Judge correctly found that the circumstances favoured consolidating the two suits to be heard and determined together. 68.It is also noteworthy that counsel for the appellants, who also acted for the 1st to 9th defendants in the subsequent suit, did not challenge or object to the consolidation of the related suits. In any event, the appellants failed to demonstrate that the consolidation resulted in any of the parties suffering prejudice of any kind. Accordingly, taking issue with the consolidation of the two suits before the trial court this late in the day does not avail the appellants any favourable decision or relief as sought in their appeal. 69.On the 3rd and last issue as to whether the learned Judge erred in allowing the respondent’s suits in the face of alleged uncertainty as to whether the suit premises pleaded by the parties were the same or different parcels of land, counsel for the appellants submitted that, at the outset, the learned Judge's own reasoning betrayed a fundamental uncertainty as to the identity of the land in dispute; and that, in the impugned judgment, the learned Judge expressly questioned whether the Court was dealing with the same parcel of land referred to by the respective parties, and whether there existed an overlap between the suit land and the parcels claimed by the appellants. 70.According to counsel, it is trite that, where doubt exists as to a material issue in dispute, that doubt must, on the balance of probabilities, be resolved in favour of the party against whom wrongdoing is alleged. Counsel relied on Dete v Mirieri [2025] KEHC 3337 (KLR) for the well-established proposition that, where the evidence on a material issue is evenly balanced, the party upon whom the burden of proof lies must fail. As counsel further submitted, the respondent, as the party asserting encroachment, bore that burden; and that, having failed to discharge it to the requisite standard, the suits ought to have been dismissed. 71.Learned counsel further submitted that the respondent took no steps to resolve the question of identity of the suit premises by competent evidence; that what the circumstances plainly demanded was the production of a surveyor's report establishing, with precision, that the appellants were in occupation of the respondent's parcel of land, and had encroached upon it, whether by removal or destruction of beacons or otherwise; that no such report was placed before the Court; that, in the absence of that evidence, the respondent cannot be said to have discharged the burden that lay upon him; and that the learned Judge ought not to have resolved the uncertainty in his favour. 72.Counsel invited us to find that the appellants, for their part, produced certificates of title in evidence, demonstrating that they had been allocated distinct portions of land formerly owned by Mrs. Norton, a beneficiary of a parcel derived from the original suit land; that those titles constituted cogent evidence of lawful and recognised entitlement. Yet the learned Judge, in the impugned judgment, appears to have treated those titles as evidence that the suit premises had been formally subdivided and allocated to the appellants, a conclusion for which no evidence was tendered beyond the certificates themselves; and that the appellants' case, properly understood, was not that they claimed ownership through a formal allocation of the suit premises, but rather that they were in lawful possession of distinct parcels in their own right. In conclusion, counsel contended that the learned Judge's conflation of these two distinct positions constituted a material error of fact which caused serious prejudice to the appellants, as it fundamentally mischaracterised the nature and basis of their defence. 73.On their part, learned counsel for the respondent submitted that the suit property is a distinct parcel of land emanating from a subdivision of the original parcel No. 427/32/III/MN, with a deed plan issued on 23rd October 1992; that, on the other hand, the appellants’ parcels, as evidenced by the Certificates of Title produced by the 1st to 9th defendants in the subsequent suit, are derived from the parcels Nos. 427/67/III/MN, 427/65/III/MN and 427/68/III/MN with deed plans issued on 22nd September 1997. 74.Upon a careful examination of the evidence adduced by the parties, it is plain that the parcels in respect of which Certificates of Title were issued to the patriarch of the appellants and the co- defendants were derived from subdivisions of the original parcel that are entirely distinct and separate from the suit property. Critically, neither the appellants nor the co-defendants made any attempt — whether through documentary evidence, expert testimony, or otherwise — to establish a nexus between their respective Certificates of Title, or their claims to unregistered portions, and the suit property itself. Their case, in this regard, rested on bare assertion rather than demonstrable proof. 75.Although she expressed some uncertainty as to whether the appellants’ case proceeded on the basis of an overlap between competing titles or on the proposition that the competing titles related to the same parcel on the ground, the learned Judge nonetheless arrived at the correct conclusion. She correctly observed that the respondent’s Certificate of Title and Deed Plan had been issued long before the corresponding documents issued to Gambo Mwagambo Ndago; that those documents remained valid and subsisting, never having been cancelled; and that no evidence whatsoever had been placed before the Court to suggest fraud, illegality, or procedural impropriety in their issuance. In the circumstances, the learned Judge was fully entitled to uphold the respondent's title. 76.It is settled law that a registered title enjoys the protection of indefeasibility and shall not be defeated save upon proof of fraud or illegality directly attributable to the registered owner: see Wreck Motor Enterprises v Commissioner of Lands [1997] KECA 391 (KLR), where this Court affirmed that registration confers an indefeasible title that overrides all unregistered and competing interests not brought within the register. The appellants failed to meet that threshold. 77.To our mind, any residual uncertainty arising from the competing documents produced by the parties is, on a proper analysis, entirely of the appellants' own making. It was incumbent upon them to demonstrate, with reasonable precision, a logical and evidentiary connection between the documents they relied upon and the suit property as it exists on the ground, which they conspicuously failed to do. It goes without saying that a party who seeks to displace a registered title bears a heavy evidential burden, and cannot discharge that burden by merely producing and dangling documents of title relating to separate parcels and inviting the Court to speculate as to their relationship with the suit property. This ground of appeal likewise fails and is hereby dismissed. 78.Having carefully considered the record of appeal, the grounds on which it was anchored, the rival submissions of learned counsel, the cited authorities and the law, we reach the inescapable conclusion that the appeal fails and is hereby dismissed with costs to the respondent. Consequently, the judgment and decree of the ELC at Mombasa (N. A. Matheka, J.) delivered on 21st February 2023 be and is hereby upheld. Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 31ST DAY OF JULY, 2026.JAMILA MOHAMMED....................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.....................................JUDGE OF APPEALG. W. NGENYE-MACHARIA....................................JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR