https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1362

Nyumu & 2 others v Ngari (Civil Appeal E178 of 2022) [2026] KECA 1362 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1362 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal E178 of 2022 W Karanja, JW Lessit & A Ali-Aroni, JJA July 3, 2026 Between Esther Micere Nyumu 1st Appellant Misheck Mwangi Nyumu 2nd Appellant Esther Wakuthi Kathoni 3rd Appellant and Winnie Wakio Ngari Respondent (Being an appeal from the Judgment of the Environment and Land Court at Kerugoya (Cherono, J.) dated 5th November, 2021 in E.L.C Case No. 40 of 2019) Judgment 1.This appeal arises from the judgment of the Environment and Land Court (ELC) at Kerugoya (Cherono, J.) dated 5th November, 2021 in ELC Case No. 40 of 2019. 2.This being a first appeal, our mandate is as set out in Article 164(1) of the Kenya Constitution, Section 3 of the Appellant Jurisdiction Act, Section 78 of the Civil Procedure Act and rule 31(1) of this Court’s Rules. We are enjoined under the law to re-appraise the facts and to draw our own inferences and conclusions. The predecessor of this Court aptly restated the duty of a first appellate in Selle & Another vs. Associated Motor Boat Company Limited & Others [1968] EA 123 over legal duty in first appeals thus:“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 conclusion. Though it should always bear in mind that it has neither seen nor heard the witness and should make due allowance in this 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 demeanor of a witness is inconsistent with the evidence on the case generally.” 3.The brief facts of the case are that Winnie Wakio Ngari, the respondent herein, filed a suit before the ELC by way of an originating summons dated 19th September, 2019, brought under Order 37 rule 7(1) of the Civil Procedure Rules 2010, section 38(1) of the Limitation of Actions Act, sections 1A, 1B and 3A of the Civil Procedure Act. The suit was against Esther Micere Nyumu, Misheck Mwangi Nyumu and Esther Wakuthi Kathoni, the 1st to 3rd appellants respectively, and sought to have the respondent declared the proprietor of Land Parcel Nos. Kabare/Nyangati/6156 and Kabare/Nyangati/6157 (herein referred to as the suit land), through adverse possession. 4.In her affidavit in support of the claim, the respondent averred that she came into the land in 1992. In 1996 Kerugoya/Kutus Municipal Council (hereinafter the Municipal Council) subdivided the land into plots and allotted them to members of the public, allocating to her Jua Kali Plot No. 59. 5.The respondent averred that she came to learn that the mother title Kabare/Nyangati/3158 was registered in the name of the 1st appellant in 1996 and that in 2012 the 1st appellant subdivided it into Land Parcel Nos. Kabare/Nyangati/6146 to 6159. That in 2013 she transferred Kabare/Nyangati/6156 to the 3rd appellant, and in 2018 she transferred Kabare/Nyangati/6157 to the 2nd appellant. That at the time of the subdivision and transfers thereon, she had been in exclusive and quiet possession of the suit land, had occupied and lived on the suit land continuously since the year 1992, and had fully developed the land by building semi- permanent and permanent houses; and had planted assorted trees thereon. 6.In reply to the Summons, the appellants filed a replying affidavit sworn by Esther Michere Nyumu, (the then 1st respondent) on 27th November, 2019 on behalf of all the appellants. The 1st appellant who is the mother and grandmother to the 2nd and 3rd appellants respectively, deposed that she gifted the suit land to the 2nd and 3rd appellants sometime in the year 2018 and 2013 respectively, after subdivision of parcel No. Kabare/Nyagati/3158 from the mother title parcel No. Kabare/Nyagati/23. She averred that she inherited parcel No. Kabare/Nyagati/23 through transmission, from the estate of her late husband, through Embu Succession Cause No. 83 of 1995, where she was a co- administratrix with her co-wife. That upon inheriting the suit land, she caused the subdivision of the suit land and the gifting of the suit land to her son and granddaughter. She denied that the Kirinyaga Municipal Council (Municipal Council) ever owned parcel No. Kabare/Nyagati/23 or any resultant sub-division, as claimed by the respondent. She stated that there had been various attempts to claim ownership of the suit land in the past by various parties affiliated to the respondent, culminating in various court cases. That the Municipal Council was not a party or interested party in the suit, nor did it commence any suit claiming the suit land either against her or anyone claiming under her. 7.The 1st appellant averred that the instant suit was only filed following suits filed by the 2nd and 3rd appellants in Wang’uru ELC No. 48 and 47 of 2019 respectively seeking eviction orders against the respondent. He averred that in any event, even if it were the case that the respondent had been allocated the suit land by the Municipal Council, which was denied, then adverse possession would not apply; or even if the Municipal Council had acquired the suit land and compensated the appellants, which was also denied, then it went against the grain of compulsory acquisition for the Municipal Council to dispossess land from one individual and allocate it to another for purposes other than public utility. 8.The 1st appellant deposed that she had always had title to the suit land and had severally dealt with the same. She termed as misleading the respondent’s claim that the appellants had never taken up possession or occupation of the suit land. She prayed for dismissal of the originating summons with costs, and for their prayers as prayed for in Plaint in the consolidated suits, Wang’uru ELC Nos. 47 and 48 of 2019 both dated 22nd July, 2019. 9.The matter proceeded by way of viva voce evidence. The respondent’s case was a reiteration of her pleadings. The gist of her testimony was that she had lived on the suit land for 24 years, after it was allocated to her by the Municipal Council on 28th May, 1996. She said that she sued the appellants after she was served with court documents from Wang’uru Law Courts asking her to vacate the suit land in 2019. On cross examination she stated that she was not served with any letter of demand requiring her to vacate the suit land, and that she only became aware that the suit land had title deeds after she was sued. She also stated that a restriction was registered by the Municipal Council. She also claimed, in cross examination by the appellant’s advocate that she bought the suit land from one Githinji. 10.The 1st appellant on her part adopted as evidence averments in her replying affidavit which we have summarized herein. She denied knowing the respondent and said that she was not aware of the exact time the respondent entered the suit land, but she confirmed that she had built timber houses on the suit land for rent. She alleged that the respondent had teamed up with the Municipal Council to remove them [appellants] from the suit land. 11.The 2nd appellant testified that he is the registered proprietor of parcel no. Kabare/Nyangati/6157 having been gifted in 2018 by his mother, the 1st appellant. He said that the Municipal Council placed a restriction on the suit land in 2014 but removed it in 2017; that he thereafter got title to the land in 2018. He said people he did not know had constructed on his portion of the suit land as from 2013. That he filed a suit at Wang’uru Principle Magistrates Court Case No. 47 of 2019 seeking to evict the respondent after learning she was behind the construction. 12.At the close of the case, the parties filed their written submissions. By the judgment dated 5th November, 2021, Cherono, J. found that there were clear indicators that supported the respondent’s contention that she had lived in the suit land for more than 12 years based on photographs she produced, which were of both permanent and semi- permanent houses, assorted trees, including mature avocado trees. He noted that the respondent’s averment given on oath confirmed her claim, and the same was not challenged or controverted by the appellants. The Judge found that the appellants failed to explain how the respondent came into possession of the suit land, and held that failure to controvert the respondent’s contention that she entered into the suit land in 1996, or give an account of how she entered into the suit land, left him with no alternative but to believe the evidence adduced by the respondent. 13.The trial Judge found that the respondent brought herself within the confines of the law under the doctrine of adverse possession and, therefore, was entitled to the orders sought. He entered judgment for the respondent as sought in her originating summons and dismissed the prayers sought by the 2nd and 3rd appellants in their counterclaim by way of the consolidated suits they filed in Wang’uru Magistrate’s Court being PMCC No. 48 of 2019 and PMCC No. 47 of 2019. 14.Aggrieved and dissatisfied with the said judgment the appellants preferred an appeal to this Court. In the memorandum of appeal dated 23rd December, 2022 they fault the learned Judge of falling into error: for failing to appreciate that the respondent did not satisfy the ingredients of adverse possession; by basing the assessment of the time the respondent occupied the suit land on maturity of trees on the land; for failing to take cognizance of the fact that the suit land was given to the appellants as a gift and they held valid title deeds to it; and, failing to appreciate that the respondent claimed the suit land through allocation by the defunct Kerugoya/Kutus Municipality, and as such, adverse possession could not apply to the case.” 15.We heard this appeal through this Court’s virtual platform on the 3rd February, 2025. Present for the appellants was learned counsel Mr. Mugo and for the respondent learned counsel Mr. Makworo. Both Counsel relied on their written submissions with brief oral highlights. 16.Having considered the record of appeal in its entirety submissions and authorities by both counsel to the parties and the law, we find that what lies for our determination is:i.Whether the respondent acquired the suit land by adverse possession;ii.Who had the burden of proof;iii.Whether an allotment letter from the Municipal Council was prejudicial to the respondent’s claim;We shall address with all the issues simultaneously as they are closely related. 17.Mr. Mugo submitted that the respondent did not prove that she was in adverse possession of the suit land. He urged that the respondent's claim to the suit land was inconsistent and lacked evidentiary support. That initially she entered the suit land on the basis of an allotment letter from the Municipal Council in 1996, but later claimed that she purchased the land from one Githinji. Neither the Municipal Council nor Mr. Githinji were enjoined in the proceedings. Furthermore, the respondent did not produce a sale agreement to substantiate the purchase from Githinji, and the respondent introduced the sale/purchase narrative during cross-examination; she did not clarify the date or year of purchase, and neither did her pleadings make any mention of the transaction. He argued that it remained unclear whether the respondent's entry into the suit land was pursuant to an allocation by the Municipal Council or the purchase from Githinji. 18.Mr. Mugo relied on several cases all of which set out the conditions that must be satisfied for a claim of adverse possession to succeed. Counsel urged that in this case, the respondent failed to establish any of the requisite conditions. He relied on Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR for the proposition that adverse possession occurs where a person takes possession of land and asserts rights over it against the title holder; on Titus Mutuku Kasuve vs. Mwaani Investment Ltd & 4 Others [2004] eKLR for the proposition that the claimant must prove exclusive possession of land, openly and as of right without interference for 12 years; on Tabitha Waitherero Kimani vs. Joshua Ng’ang’a [2017] KEELC 2455 (KLR) and Gabriel Mbui vs. Mukindia Maranya [1993] KEHC 161 (KLR) for the proposition that the use of the land must be continuous, exclusive and actual possession that is so visible and apparent that it gives notice to the legal owner that someone may assert a claim over the land. 19.In response, Mr. Makwaro refuted the appellants’ claim that the respondent's case was based on a sale agreement. He contended that the originating summons and supporting affidavit did not mention any purchase or annex any sale agreement. Counsel admitted that the respondent’s entry into the suit land was based on a transfer of the property by the then Municipal Council, supported by a document dated 28th May, 1996 produced in evidence, which referred to a "transfer" rather than a mere allotment. He acknowledged that while the respondent entered the land relying on this document, the respondent did not ultimately rely on it to establish ownership, and instead sought a declaration by way of adverse possession. 20.Mr. Makwaro submitted that it is the responsibility of the registered owner to take timely action to assert his rights, relying on the case of Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR for the proposition that the burden lay with the appellants as registered proprietors to reclaim their property before the adverse possessor’s rights accrue. He submitted that the appellants failed to demonstrate when they discovered the respondent's occupation of the suit land, or when she allegedly encroached on their land. According to him, by the time the appellants filed for eviction in Wang’uru Law Court, the respondent had already acquired rights by adverse possession. He dismissed the appellants' suggestion that the respondent was unsure of her claim, arguing instead that it is the appellants who failed to discharge their burden of proof of when the alleged encroachment by the respondent occurred. He admitted that the subdivision by the Municipal Council alluded to in the respondent’s affidavit, was not reflected in the green card for the suit land. 21.In the respondent’s written submissions dated 25th January, 2025, reliance was placed on the case of Mbura vs. Gachuhi [2002] 1 E.A.L.R 39, which emphasizes the need for non- permissive, exclusive, and notorious occupation of land for the statutory period. In response to the cases cited by the appellants, including, Tabitha Waitherero Kimani vs. Joshua Ng’ang’a (supra) and Gabriel Mbui vs. Mukindia Maranya (supra), the respondent argued that the ingredients for adverse possession in those cases supported the respondent’s position. The respondent dismissed the appellants’ claim that the suit land was acquired as a gift and asserted that the only issue for determination was adverse possession. 22.A claim for adverse possession is brought on the strength of section 38 of the Limitation of Actions Act. Section 38(1) provides;“38.Registration of title to land or easement acquired under Act.(1)Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.” 23.For a party to succeed in a suit for adverse possession, the following circumstances must arise as considered by this Court in the case of Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR:“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 24.We propose to deal with the issue of the burden of proof, as it has elicited attention going by the submissions by both sides, and because it sits at the very core of this case. The respondent has submitted that it is the appellants who had the burden to prove the date the respondent entered into the suit land. The appellant on the other hand urged that the respondent failed to prove adverse possession, which was her duty to prove. 25.The Judge observed that the appellants did not explain how the respondent took possession of the suit land. He stated that even in the suits they filed against her in Wanguru Court, the appellants gave no account of how the respondent took possession of the suit land; that the court had no choice but to believe the respondent’s uncontroverted evidence that she entered the land in 1996. He found that her averments in her pleadings to that effect, and the photographs she produced showing mature trees and buildings she had on the suit land as evidence she had been in occupation for more than 12 years. 26.The Evidence Act, sections 107 to 109 deals with the issue of burden of proof in cases and provides as follows:107.Burden of proof.1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108.Incidence of burden.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109.Proof of particular fact.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person 27.It is a well-established rule of evidence that whoever asserts a fact is under an obligation to prove it in order to succeed. In this case, the respondent was claiming the suit land, asserting that she had been in occupation of the suit land for over 12 years, and thus the appellants’ title to the suit land extinguished. Since it is the respondent who wanted the court to believe she had been in adverse possession of the suit land, she bore the burden to prove the existence of facts to prove her case. The Judge, with all due respect, shifted the burden of proof against the appellants, who had no evidential burden to prove when and how the respondent entered the land. It was a serious misdirection on the part of the court to shift the burden of proof against the appellants. 28.There is a plethora of cases that define what adverse possession is and also what an applicant claiming title to land under section 38 of the Limitation of Actions Act should prove.This Court in Wilson Kazungu Katana & 101 Others vs. Salim Abdalla Bakshwein & Another [2015] eKLR stated as follows:“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. It is exactly for this reason, perhaps that there was a mandatory requirement under the old Civil Procedure Act and the rules made thereunder that when taking out an O. S. anchored on adverse possession that an extract of the title to the subject land be annexed to the application.” [Emphasis added] 29.In Lazaro Kabebe vs. Ndege Makau & Another [2017] eKLR the court held that an applicant in an action for adverse possession can only be entitled to a portion which he possessed. Further, an adverse possessor can acquire only a portion of land under their control and possession, not necessarily the entire land the holder of title owns. That was the holding of this Court in the case of Githu vs. Ndeete [1984] KLR 776 as follows:“(4)A Title by adverse possession can be acquired under the Limitation of Actions Act to a portion of the piece of land which the owner holds.” 30.The same position is explained in the text by Kevin Gray and Susan Francis Gray on Elements of Land Law, 5th Edition at page 1184 -1185:“The factum or corpus of possession required to be shown by the successful squatter necessarily involves evidence of complete and exclusive physical control over the land claimed. The duration of the squatter’s occupation, its exclusivity and the acts of user relied upon must normally be verifiable by a physical survey of the land. Adverse possession may be asserted in respect of only part of the land titled in the paper owner, the latter remaining in effective possession of the remainder of his land. Provided that the squatter is in exclusive factual possession of an identifiable portion of the land, it is irrelevant but the owner of the paper title has not been wholly dispossessed” [Emphasis added.] 31.We have considered the supporting affidavit filed by the respondent in support of the Originating Summons. She avers that she has been in continuous uninterrupted occupation of the suit land for over 12 years, since 1996. She then avers that the original land parcel No. Kabare/Nyangati/3158 was subdivided in 2012 and in 2013 the 1st appellant transferred Kabare/Nyangati/6156 to the 3rd respondent and Kabare/Nyangati/6157 to the 2nd appellant in 2018. 32.Several issues arise from these facts. The respondent said she was in continuous uninterrupted occupation of the suit land [6156 and 6157] since 1996. She produced copies of green cards to the suit land. These green cards show that the suit land was not in existence in 1996. Further, she averred that land parcel No. 3158 was the mother title that yielded the suit land in 2012. And further, she puts in another number, Jua Kali No. 59 and attached a document “transfer’ from the Municipal Council showing the plot was allocated to her in 1996. 33.We considered the evidence of the 1st appellant’s that the mother title from which parcel No. Kabare/Nyagati/3158 was derived was parcel No. Kabare/Nyagati/23. She averred that she inherited parcel No. Kabare/Nyagati/3158 in 1995, through transmission from the estate of her late husband; in Embu Succession Cause No. 83 of 1995. In 2012, she subdivided Kabare/Nyagati/3158 into plot Nos. 6146 to 6159, including the suit land. 34.The issue that arises then is very simple; exactly what parcel of land was the respondent claiming. Going by her pleadings, the respondent is claiming the suit land by virtue of being in adverse possession of the same since 1996, yet the suit land came into existence in 2013 and 2018, less than five years from the date she filed her OS. Parcel No. 3158 from which the suit land was derived was in existence in 1995 before being subdivided into 14 plots in 2012. 35.The law is 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. Further, the adverse possessor should prove they had exclusive factual possession of an identifiable portion of the land. The respondent did not state what size the suit land was, and how much of it she was claiming. The land claimed was not identifiable. Considering the evidence adduced in this case, we find that the land claimed by the respondent was not properly identified, and was not identifiable for purposes of adverse possession. 36.The respondent averred that she was allotted Plot 59, and produced documents in support of her claim. It is not clear whether that plot had any nexus with the suit land, and further, it is not clear if it existed at the time the suit was filed. If at all it existed, who owned it at the time of coming to court is a question that was not addressed; and as the same was not shown to ever have been owned by the appellants, that claim was misplaced. 37.It is an important fact, which the trial Judge missed, whether having acknowledged that parcel No. Kabare/Nyangati/3158, was the mother title from which the suit land, among others was derived, did not defeat the respondent’s claim. The respondent brought as evidence the green card for this title showing that it was registered in the 1st respondent’s name. The 1st respondent at paragraphs 5 and 6 of her supporting affidavit avers that the 1st appellant sub-divided 3158 in 2012, into parcel Nos. 6146 to 6159. That was an acknowledgment that between 1995, when the 1st appellant obtained 3158, and 2012 when she subdivided the land it drastically changed and transformed from one parcel to 14 plots. That makes the issue whether the respondent properly identified the land she claimed, and whether she proved exclusive control and possession of the same. 38.The other issue is whether by subdividing parcel No. 3158 in 2012, and bequeathing part of it to the 2nd and 3rd appellants, the 1st appellant successfully asserted her ownership over the said land, thus interrupting the running of time for purposes of adverse possession. This Court, in the case of Githu vs. Ndeete [1984] KLR 776, held inter alia that:“(3)Time ceases to run under the Limitation of Actions Act either when the owner takes or asserts his rights or when his right is admitted by adverse possession, assertion occurs when the owner takes legal proceedings or makes an effective entry into the land. Giving notice to quit cannot be effective assertion of right for the purpose of stopping the running of time under the limitations of Action Act.” 39.Lastly, we wish to mention is that the respondent’s case was confusing as it is clear she entered the land, whichever it is as the same is not clear, with the express permission of the Municipal Council. She produced a letter to that effect showing she was allocated land in 1996. Her entry was, therefore, under the permission of the Municipal Council. She did not say what happened to plot 59 and from which date, as that would be the period during which time could have started running for adverse possession, if at all. In her evidence at the trial court she claimed she bought the land from one Githinji, a fact evident on the record of the proceedings. Whether Municipal Council or Githinji, it is clear the appellants had nothing to do with it. 40.The final thing we wish to touch on is the issue of computing time for purposes of adverse possession. We do not wish to dwell much on it, only to say the learned Judge misdirected himself by using pictures of trees and structures to determine the period the respondent had occupied the suit land. Photographs cannot aid the court in determining time. The burden of proof lay with the respondent to prove the period of possession with cogent evidence, not photographs. It was a serious misdirection for the Judge to shift that burden to the appellants. 41.We have come to the conclusion that the respondent did not prove her case, and that her case ought to have been dismissed. We order as follows:1.The appellants appeal is allowed.2.The judgment of the Environment and Land Court Case No. 40 of 2019, at Kerugoya, dated 5th November, 2021 by Cherono, J. be and is hereby set aside with costs to the appellants.3.The respondent’s Originating Summons before the ELC is dismissed with costs to the appellants. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.W. KARANJA....................JUDGE OF APPEALJ. LESIIT....................JUDGE OF APPEALALI - ARONI....................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR