https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4168

Warui v Karuu (Environment and Land Appeal E024 of 2023) [2026] KEELC 4168 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEELC 4168 (KLR) Republic of Kenya In the Environment and Land Court at Kerugoya Environment and Land Appeal E024 of 2023 SM Kibunja, J July 8, 2026 Between Peter Warui Appellant and Charles Karuru Karuu Respondent (Being an appeal against the Judgment and decree of the Hon. A.K. Ithuku, CM, delivered on 7th September 2023 in MCELC Case No. E076 OF 2022) Judgment Introduction: 1.This appeal arises from the judgment of the Chief Magistrate's Court at Kerugoya in ELC Case No. E76 of 2022 delivered on 7th September 2023 by Hon. Alex K. Ithuku, CM, as he then was.The dispute concerns ownership and occupation of Land Parcel No. Inoi/Kiaga/3121 and pits two biological brothers against each other. The respondent, as registered proprietor of the suit property, sought eviction and injunctive relief against the appellant, while the appellant asserted that he had acquired title to the land by adverse possession after occupying it for over twenty years. Background and Pleadings: 2.By an undated plaint filed on 13th June 2022, the respondent commenced the suit before the lower court pleading inter alia that he was the registered proprietor of Land Parcel No. Inoi/Kiaga/3121, having obtained the same following the subdivision of the original family Land Parcel No. Inoi/Kiaga/785 belonging to his father, John Karuu Maganjo. He averred that the appellant, who is his biological brother, had entered the suit property without colour of right, constructed houses and other structures thereon, and continued to occupy the land together with persons acting under him. The respondent therefore sought an order of eviction, demolition of the structures erected on the land, a permanent injunction restraining further occupation or interference with the property, and costs of the suit. 3.The appellant entered an appearance and filed a statement of defence and counterclaim dated 12th July 2022. He inter alia denied that the respondent was entitled to exclusive possession of the suit property and contended that he had occupied the land since the year 2000.According to the appellant, their father had originally intended to divide the family land among his three sons and himself, but later subdivided it into three portions and excluded him after disagreements with his wife. He maintained that he had established his home on the disputed portion, married there, raised his children thereon, and extensively developed the land, including constructing a permanent house.On that basis, he counterclaimed for a declaration that he had acquired title to the suit property by adverse possession, and for an order directing that he be registered as the proprietor of Land Parcel No. Inoi/Kiaga/3121, and costs. 4.In response to the defence and counterclaim, the respondent reiterated that he was the registered proprietor of the suit property and denied that the appellant had ever acquired ownership thereof. He pleaded that the subdivision creating Parcel No. Inoi/Kiaga/3121 occurred in January 2022 and asserted that the appellant had only occupied the land around 2018. The respondent further stated that he had been allocated the land by his father and wished to develop it, but was prevented from doing so by the appellant's occupation. He therefore urged the trial court to dismiss the counterclaim with costs. Proceedings before the Trial Court: 5.The suit proceeded to a hearing on 6th April 2023. The respondent testified as PW1. He adopted his witness statement and produced his documents as exhibits. He confirmed that the appellant was his brother and stated that he sought his eviction from the suit land. In cross-examination, he testified that there were three brothers in the family, that he inherited the suit property from his father in 2022, and that the appellant was in occupation of the land.He stated that the appellant had lived on the land since 2014, but later said the appellant entered the land in 2018. He also acknowledged that the land was ancestral and that he had his own parcel separate from the disputed land. In re-examination, he stated that the appellant built his house in 2014 and entered the land in 2018, and that all the brothers had previously lived in the same compound. 6.The respondent called his father, John Karuu Maganjo, as PW2. PW2 adopted his statement and produced his documents. He confirmed that both parties were his sons and that he subdivided his land in 2022.In cross-examination, he stated that he had three sons and a daughter. That he had shown the appellant a place to live, and that the appellant forcefully entered the disputed portion and built there without his authority. In re-examination, he stated that he had not sued the appellant and that the appellant moved onto the land while they were living together. 7.The appellant testified as DW1. He adopted his witness statement and documents and prayed that his counterclaim be allowed. In cross-examination, he confirmed that the respondent was his brother and stated that their father showed each son a place within the common compound in the year 2000. He stated that the house in which he currently lived was constructed in 2014. That titles were issued in 2022, and that he occupied approximately three-quarters of an acre, which he had occupied for twenty-two years. He maintained that the respondent owned land elsewhere. 8.The appellant's wife, Beatrice Warui, testified as DW2. She stated that she married the appellant in 1993. In cross-examination, she stated that they were not shown a separate parcel of land. That they built their first house on the disputed land in 2000 and later demolished it, and that the current house was built in 2014. She further stated that her father-in-law had refused to give them land and that the respondent had his own parcel. In re-examination, she maintained that they entered the land in 2000 and that when she got married, the family lived in one compound. The impugned Judgment: 9.In the judgment delivered on 7th September 2023, the learned trial magistrate found inter alia that the respondent was the registered proprietor of Land Parcel No. Inoi/Kiaga/3121, and therefore enjoyed statutory rights over the property.The court considered the appellant's claim for adverse possession and relied on the case of Mbira versus Gachuhi (2022) IE ALR 137 for the proposition that a claimant must prove non-permissive, open, exclusive and adverse occupation for the statutory period, and held inter alia that the appellant's occupation was not hostile because he was the son of the original registered owner, and his occupation and developments on the land were permissive. 10.The court observed that the land had only recently been subdivided and that the respondent became registered proprietor in 2022, whereupon his rights crystallised. The learned trial magistrate further held that if the appellant had any claim based on adverse possession, it would have been against his father, rather than the respondent. Having found that the claim for adverse possession could not stand, the court concluded that the respondent's proprietary rights were protected under the Constitution and the Land Registration Act, and that the appellant's continued occupation constituted an encroachment. Judgment was therefore entered for the respondent as prayed, and the appellant was granted sixty days within which to remove his structures, failing which he was to be evicted. Grounds of appeal: 11.Aggrieved and dissatisfied with the impugned judgment, the Appellant has preferred this appeal vide the memorandum of appeal dated 5th October 2023, raising eight (8) grounds which, in substance, challenge the trial court's dismissal of the counterclaim and grant of eviction orders.The appellant contends inter alia that the learned trial magistrate failed to properly evaluate the evidence; failed to appreciate that he had occupied the land for over twelve years without interruption; and wrongly concluded that time began to run only after the respondent became registered proprietor in 2022.He further contends that any rights acquired by adverse possession had already accrued against the original proprietor before subdivision; that the eviction orders failed to take into account the fact that he had established a permanent home on family land and that the dispute arose within a family setting. 12.This Court directed that the appeal to be canvassed through written submissions. Summary of the Parties' Submissions: 13.In their written submissions dated 24th September 2025, the learned counsel for the appellant submitted inter alia that the appellant had acquired title to the suit property by adverse possession, having occupied the land continuously and openly since the year 2000. He relied on the cases of Issack versus Basheik & Another [2025] KEELC 5550 (KLR) and James Obande Wasui versus Jeremiah Ochwada Musumba [2002] eKLR for the proposition that rights acquired by adverse possession run with the land, and bind subsequent proprietors as overriding interests under Section 28(h) of the Land Registration Act.Counsel argued that the subdivision undertaken in 2022 did not reset time, and that the appellant had sufficiently proved the ingredients of adverse possession. It was therefore submitted that the appellant should be registered as the proprietor of Land Parcel No. Inoi/Kiaga/3121, and that the appeal should be allowed. 14.The learned counsel for the respondent, in his written submissions dated 17th August 2025, submitted inter alia that the appellant had not established adverse possession. Reliance was placed on the cases of Mtana Lewa versus Kahindi Ngala Mwagandi [2015] eKLR, Kimani Ruchire versus Swift Rutherfords & Co. Ltd [1980] KLR 10, and Richard Wefwafwa Songoi versus Ben Munyifwa Songoi [2020] KECA 942 (KLR) for the proposition that adverse possession must be hostile, continuous and without the permission of the true owner.Counsel submitted that the appellant was born and brought up on the family land, and occupied it under his father's permission. That the respondent became registered proprietor only in 2022, and that no twelve-year period had accrued against him. The respondent further submitted that, having failed to establish adverse possession, the appellant was liable to vacate the suit property so that the respondent could enjoy quiet possession as the registered owner. The Court was therefore urged to dismiss the appeal with costs. 15.The issues arising for the court’s determinations in this appeal are as follows:a.Whether the appellant proved the essential ingredients of adverse possession against the original registered proprietor.b.Whether the subdivision of land parcel No. Inoi/Kiaga/785 and the subsequent transfer of parcel No. Inoi/Kiaga/3121 to the respondent affected the appellant's claim for adverse possession.c.Whether the learned trial magistrate erred in granting the respondent the relief sought.d.Who pays the costs? 16.The court has carefully considered the grounds on the memorandum of appeal, record of appeal, submissions by the two learned counsel, superior court decisions cited and come to the following conclusions:a.This being a first appeal, this Court is obligated to reconsider, re-evaluate, and re-analyse the evidence tendered before the trial court and draw its own independent conclusions. However, in undertaking that exercise, the Court must bear in mind that it neither saw nor heard the witnesses testify and should therefore accord due allowance to the advantage enjoyed by the trial court in assessing the demeanour and credibility of those witnesses.An appellate court will not ordinarily interfere with findings of fact unless it is demonstrated that the trial court failed to take into account particular circumstances or probabilities, misapprehended the evidence, applied wrong principles of law, or reached findings that are plainly unsupported by the evidence on record.The duty of a first appellate court was succinctly stated in the case of Selle & Another versus Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held that a first appeal is by way of retrial, and that the appellate court is not bound necessarily to follow the trial court's findings of fact, if it appears that the trial court failed to appreciate the weight of the evidence or acted on wrong principles.b.Similar guidance was given in the case of Peters versus Sunday Post Ltd [1958] EA 424, where it was observed that although an appellate court has jurisdiction to review the evidence in order to determine whether the conclusions of the trial court should stand, that jurisdiction must be exercised with caution because the trial court had the singular advantage of seeing and hearing the witnesses.c.While this Court is obliged to conduct an independent appraisal of the entire record, it must equally remain alive to the fact that the appeal is directed against a judgment reached after the trial court had the benefit of receiving viva voce evidence. The task before this Court is therefore not to determine how it would have decided the dispute in the first instance, but rather to determine whether the conclusions reached by the learned trial magistrate are supported by the evidence and the applicable law.d.The appellant's case before both the trial court and this Court rests on a single proposition that he had acquired title to the suit land by adverse possession, by reason of his occupation of the disputed land since 2000, which was long before the original parcel was subdivided and transferred to the respondent in 2022. It is therefore his contention that by the time the respondent became the registered proprietor of Land Parcel No. Inoi/Kiaga/3121, the rights of the original proprietor had already been extinguished by operation of the Limitation of Actions Act, and the respondent consequently took title subject to the appellant's overriding interest.e.The respondent, on the other hand, contends that the appellant's occupation was never adverse. His position is that the appellant occupied the land purely by virtue of the family relationship existing between him and their father, the original proprietor of the mother parcel, and that such occupation remained permissive until the land was subdivided and transferred in 2022. Consequently, the respondent maintains that the time capable of sustaining a claim for adverse possession never began to run against the original proprietor.f.From these competing positions, it becomes apparent that the dispute before the Court is not, at least in the first instance, about the effect of the subdivision undertaken in 2022. Neither is it about whether adverse possession, once perfected, survives a subsequent transfer of title. Indeed, there is little controversy in law on that latter proposition. Section 28(h) of the Land Registration Act recognises rights acquired, or in the process of being acquired, under limitation statutes as overriding interests capable of binding subsequent proprietors without being noted in the register. Numerous authorities have equally affirmed that once rights founded upon adverse possession have crystallised, they ordinarily attach to the land itself, and are not defeated merely because the land changes hands.g.The authorities relied upon by the appellant, particularly the case of James Obande Wasui (Supra) and Basheik & Another (Supra), proceed on precisely that footing. They affirm the principle that an accrued right of adverse possession runs with the land, notwithstanding a subsequent transfer or subdivision. However, those authorities equally proceed upon an important underlying assumption, namely, that the claimant had already established all the ingredients necessary to perfect a claim for adverse possession before the transfer occurred. They do not relieve a claimant of the obligation of first demonstrating that adverse possession had in fact accrued against the original proprietor. In the Court's view, that distinction is critical and lies at the heart of the present appeal.h.Before the Court can inquire whether the respondent took title subject to an overriding interest, it must first determine whether any such overriding interest had arisen in favour of the appellant. Put differently, before considering the legal effect of the subdivision undertaken in 2022, the Court must determine whether the appellant's occupation between the year 2000 and the year 2022 possessed the legal attributes capable of extinguishing their father's title under Sections 7 and 17 of the Limitation of Actions Act.i.The appellant's submissions devoted considerable attention to the proposition that time does not restart merely because land has been subdivided or transferred. As a statement of law, that proposition is substantially correct. However, it answers the second question before answering the first. The more fundamental inquiry is whether time capable of founding a claim for adverse possession ever began to run against the original proprietor. Unless that threshold is crossed, the subsequent subdivision and transfer become legally inconsequential to the claim. It therefore becomes necessary to examine the doctrine of adverse possession itself.j.The doctrine of adverse possession is now firmly settled in our jurisprudence. It is founded upon the principle that where a registered proprietor neglects, for the statutory period prescribed by law, to assert his rights against a person openly and continuously occupying his land in a manner inconsistent with his title, the law ultimately extinguishes the paper owner's title, and vests possessory rights in the occupier. The doctrine thus operates not because time has passed, but because the registered proprietor has through prolonged inaction, failed to vindicate rights that were openly challenged by another. For that reason, courts have consistently emphasised that mere occupation of land, however lengthy, is insufficient.k.The occupation must be accompanied by certain legal characteristics. It must be open, notorious, continuous, exclusive and uninterrupted. More importantly, it must be adverse to the title of the true owner. The possession must neither be by force, nor in secrecy, nor with the permission of the registered proprietor.As the Court of Appeal observed in the case of Mtana Lewa versus Kahindi Ngala Mwagandi [2015] eKLR, adverse possession contemplates a situation where a person takes possession of land, asserts rights inconsistent with those of the registered owner, and the owner, despite knowledge of that occupation, fails to assert his own rights for the statutory period.Likewise, in the case of Kimani Ruchire versus Swift Rutherfords & Co. Ltd [1980] KLR 10, the Court stressed that possession must be adequate in continuity, publicity, and extent, and must be adverse to the true owner’s title.l.The emphasis the above authorities place on the nature of the occupation is deliberate. Adverse possession is not founded upon the mere passage of time. Time without more, does not extinguish title. What extinguishes title is the continued occupation of land in circumstances that are inconsistent with, and adverse to the rights of the true owner. The Court must therefore inquire not merely into how long the appellant occupied the land, but into the legal character of that occupation throughout the period relied upon.m.That inquiry assumes particular significance where, as here, occupation originates within a family setting. Unlike cases involving strangers, a child's occupation of a parent's land does not ordinarily arise from an assertion of hostile title. More often than not, it arises from incidents in family life, parental permission, or the expectation that land will eventually be allocated within the family. Consequently, while the law does not prohibit a child from acquiring title against a parent through adverse possession, the familial relationship inevitably requires the Court to scrutinise the evidence with particular care before concluding that possession had ceased to be permissive and had become adverse.The Court of Appeal recognised this distinction in the case of Richard Wefwafwa Songoi versus Ben Munyifwa Songoi [2020] KECA 942 (KLR), where it observed that occupation founded upon a parent's permission or upon an expectation of future inheritance cannot, without more, constitute adverse possession. Such occupation remains referable to the parent's title unless there is clear evidence demonstrating that it subsequently changed in character and became inconsistent with that title.n.It follows that the mere fact that the appellant occupied the suit property for a lengthy period cannot, standing alone, determine the appeal. The Court must interrogate the evidence to ascertain whether that occupation was exercised under the authority of the father, or whether there came a point when the appellant unmistakably asserted exclusive ownership in denial of or challenge to the father's title. It is only after answering that question that the Court can determine whether time under the Limitation of Actions Act ever commenced to run. The evidence on record must now be examined against those legal principles.o.Having set out the governing principles, the Court must now determine whether the evidence placed before the trial court established the essential ingredient of hostility. That inquiry necessarily requires the Court to examine not merely the duration of the appellant's occupation, but the circumstances under which that occupation commenced and whether, at any point thereafter, it assumed a character inconsistent with the father's title.The Court begins with an observation that is common ground. That there is no dispute that the appellant has occupied the portion of land now comprised in Land Parcel No. Inoi/Kiaga/3121 for a considerable period of time. Although the parties differed as to the precise date on which the appellant entered the land and constructed his permanent residence, neither party disputed that, by the time the respondent became the registered proprietor in 2022, the appellant was already in occupation and had established a permanent home thereon. The respondent himself acknowledged during cross-examination that the appellant was in occupation of the suit property, while both the appellant and his wife maintained that they had established their first home on the land in 2000, before replacing it with a permanent house in 2014.p.There are however, noticeable differences regarding the chronology of that occupation. Whereas the appellant consistently maintained that he entered the land in 2000, the respondent, in cross-examination, testified that the appellant had lived on the land since 2014, but in re-examination stated that he had entered the land in 2018.Similarly, while PW2, their father, asserted that the appellant forcibly entered the disputed portion without authority, he also testified that he had shown the appellant a place to reside and acknowledged that the family had initially lived together in the same compound. These differences undoubtedly affect the precision with which the Court can determine the exact date of entry, and do not resolve the legal question before the Court.Whether the appellant entered on the suit property in 2000, 2014 or 2018 is ultimately not decisive unless the Court is also satisfied that such occupation was adverse to their father's title. Consequently, the Court considers it unnecessary to resolve every inconsistency regarding the chronology of occupation before addressing the more fundamental question concerning its legal character.q.The evidence viewed as a whole, reveals that the appellant's occupation originated within an undisputed family arrangement. Both parties are sons of PW2, the original registered proprietor of Land Parcel No. Inoi/Kiaga/785. All the witnesses acknowledged that the family initially resided on the original parcel before its subdivision in 2022.The appellant himself testified that their father showed each son where to live within the common compound, while his wife confirmed that when she married into the family, they all lived together before eventually constructing their own house. Even the respondent accepted that the land was ancestral and that all the brothers had lived together before the subdivision.In the Court's assessment, this evidence establishes an important factual premise. The appellant did not enter the land as a stranger asserting rights against the registered proprietor. Rather, his occupation arose from his position as a son living upon his father's land within the ordinary incidents of family life. The significance of that finding lies not in the mere existence of the familial relationship, but in the legal consequences that flow from the manner in which possession was acquired.r.It is true, as the appellant submits, that the law does not prohibit one family member from acquiring title against another through adverse possession. The existence of a parent-child relationship is therefore not, by itself, an absolute bar to an adverse possession claim. However, because occupation within a family setting ordinarily arises by permission, tolerance or mutual accommodation, the claimant bears the burden of demonstrating by clear and unequivocal evidence that the character of his occupation subsequently changed and became adverse to the title of the registered owner. Long occupation, even extending over many years, does not by itself discharge that burden. The Court has carefully examined the record to ascertain whether any evidence demonstrates such a change in the character of the appellant's possession. Respectfully, none emerges.s.The appellant relied principally upon the length of his occupation, the construction of permanent houses, the establishment of his family home, and the extensive developments undertaken on the land. Those facts are not insignificant. Indeed, they strongly demonstrate that the appellant genuinely regarded the disputed portion as his home. However, they do not necessarily demonstrate that he occupied it in denial of or as a challenge to his father's ownership. It is entirely consistent with ordinary family arrangements in rural settings for an adult child to establish a permanent residence on family land with the knowledge, acquiescence or permission of the parent. The existence of permanent developments, standing alone, cannot therefore be equated with hostility to title.t.Equally significant is the absence of evidence showing that, prior to the subdivision undertaken in 2022, the appellant asserted an exclusive proprietary claim against his father or openly repudiated his father's ownership. There is no evidence that he communicated to his father an intention to possess the land to the exclusion of the latter, or denied the father's title, or resisted any attempt by the father to exercise proprietary control over the land, or otherwise conducted himself in a manner plainly inconsistent with the father's ownership. The evidence instead suggests that the dispute only crystallised after the father subdivided the original parcel and transferred the disputed portion to the respondent.u.The appellant himself reinforces this conclusion. His evidence was that his father had intended to allocate land to each of his sons but later altered that arrangement following disagreements involving the appellant's wife. In essence, the appellant's complaint is that he was unfairly excluded from what he believed ought to have been his rightful allocation during the subdivision. That grievance may well explain the genesis of the present dispute. It does not, however, demonstrate that before the subdivision. the appellant had been occupying the land adversely to his father's title. On the contrary, it suggests that until the subdivision, the appellant's expectation remained that his father, as owner of the land, would eventually allocate him the portion he occupied. Such an expectation is fundamentally inconsistent with the assertion that the father's title had already been extinguished by adverse possession.v.The Court therefore agrees with the learned trial magistrate that the appellant failed to establish the essential element of hostility. The conclusion reached by this Court, however, is not founded merely upon the fact that the parties are father and son. Rather, it is founded upon the totality of the evidence, which demonstrates that the appellant's occupation originated within a family arrangement, and that no cogent evidence was placed before the Court to establish that the occupation subsequently changed from a permissive occupation into adverse possession, capable of setting time running under the Limitation of Actions Act.w.The foregoing conclusion inevitably informs the appellant's principal argument on appeal, namely, that any rights acquired through adverse possession survived the subdivision of the original parcel and continued to bind the respondent upon his registration as proprietor of Land Parcel No. Inoi/Kiaga/3121. The appellant has correctly drawn the Court's attention to the provisions of Section 28(h) of the Land Registration Act, which recognises rights acquired, or in the process of being acquired, under limitation statutes as overriding interests.Equally, the decisions in the cases of James Obande Wasui versus Jeremiah Ochwada Musumba (Supra)and Issack versus Basheik & Another (Supra) correctly affirm that a subsequent transfer of land does not, of itself, defeat rights already perfected through adverse possession. Those authorities reflect the settled principle that adverse possession runs against the land and not merely against the individual proprietor.x.The Court therefore accepts, as a matter of law, that subdivision of land or transfer of title does not automatically interrupt time already running under the Limitation of Actions Act nor does the issuance of a new title necessarily extinguish an accrued possessory right. Were the position otherwise, registered proprietors could readily defeat claims for adverse possession by the simple expedient of transferring or subdividing land before litigation expired, thereby undermining the very policy underpinning limitation statutes.y.However, that legal principle presupposes one indispensable fact, namely, that by the date of transfer, the claimant had already established possession meeting the legal threshold for adverse possession.Section 28(h) protects accrued rights. It does not create them. In the present appeal, the appellant's difficulty lies not in the legal effect of the subdivision undertaken in 2022, but in his failure to demonstrate that his occupation had assumed an adverse character before that subdivision occurred. As already observed, the evidence does not establish that the appellant's occupation ever ceased to be referable to the father's permission or tolerance.The Court has found that the appellant occupied the land pursuant to a family arrangement, and in anticipation of eventual allocation by his father. Such occupation, however lengthy, was incapable of setting time running until there was a clear repudiation of the father's title or some unequivocal act demonstrating that the appellant no longer recognised the father's ownership. No such evidence was presented.z.Indeed, the appellant's own testimony demonstrates that his grievance arose from his expectation of receiving the occupied portion during the subdivision, but was ultimately disappointed when his father failed to do so. His complaint is therefore directed not at the registered proprietor's prolonged inaction in the face of hostile occupation, but at the father's decision to allocate the disputed parcel to the respondent rather than to him. That grievance, while understandable in the context of a family dispute, is conceptually different from a claim founded upon adverse possession.aa.The Court is therefore unable to agree with the appellant's submission that time began running simply because he had occupied the land since the year 2000. Occupation alone does not trigger the operation of the Limitation of Actions Act. Time begins to run only when possession becomes inconsistent with the rights of the true owner. In the absence of evidence establishing when, if ever, that transformation occurred, the Court cannot conclude that adverse possession had crystallised before the subdivision of the original parcel.Accordingly, the respondent's registration as proprietor of Land Parcel No. Inoi/Kiaga/3121 was not shown to have been subject to any overriding interest in favour of the appellant. The learned trial magistrate therefore properly dismissed the appellant’s counterclaim, and correctly upheld the respondent's entitlement to exclusive possession of the suit property.ab.Although this Court respectfully departs from part of the reasoning adopted by the learned trial magistrate, particularly regarding the legal effect of subdivision upon accrued rights of adverse possession, those refinements do not alter the ultimate outcome reached by the trial court. This court therefore, ultimately arrives at the same conclusion. The subdivision undertaken in 2022 did not defeat an accrued right of adverse possession, because no such right had been proved to exist. The respondent therefore acquired title to the suit property free from any adverse possessory interest capable of binding him under Section 28(h) of the Land Registration Act.ac.There remains one further matter that merits brief comment. Throughout the proceedings, the appellant repeatedly asserted that his father had initially intended to allocate land to each of his sons, and that he was subsequently excluded from that arrangement. The evidence likewise demonstrates that the dispute arose within the context of subdivision of ancestral land, and the allocation of portions among family members. Those facts might, in an appropriate case and upon proper pleadings, raise questions relating to beneficial interests or customary trust. However, no such claim was pleaded before the trial court. The appellant elected to pursue only a claim for adverse possession.It is a cardinal principle of civil litigation that parties are bound by their own pleadings, and a court cannot grant relief on a cause of action that has neither been pleaded nor tried. Accordingly, this Court confines itself to determining the claim as presented and expresses no opinion on whether any other remedy may or may not have been available to the appellant in different proceedings.ad.Having reached the foregoing conclusions, it necessarily follows that the learned trial magistrate cannot be faulted for declining to grant the appellant's counterclaim. Once the appellant failed to establish a legal basis upon which the respondent's registered title could be impeached, the respondent remained entitled to the protection accorded to registered proprietors under the Constitution and the Land Registration Act, including the right to exclusive possession of the suit property.ae.Having independently re-evaluated the pleadings, the evidence on record, the impugned judgment, the grounds on the memorandum of appeal and record of appeal, and the rival submissions, this Court is not persuaded that the learned trial magistrate fell into any error warranting appellate court’s intervention. In the premises, the appeal is devoid of merit.af.Costs under Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya follow the event unless where for good cause the court orders differently. Given that the dispute herein is between brothers over land originally owned by their father, and arises from the subdivision of ancestral land, the Court considers this an appropriate case in which to depart from the general rule on costs. In order to foster familial harmony and avoid further escalation of the dispute, each party shall bear his own costs of the appeal. 17.Flowing from the above-stated conclusions on this appeal, the court finds and orders as follows:a.That the appeal is devoid of merit and is hereby dismissed.b.That the learned trial magistrate's judgment of 7th September 2023, and the decree emanating therefrom, is hereby affirmed.c.That each party to bear their own costs in the appeal. Orders accordingly. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 8TH DAY OF JULY 2026S. M. KibunjaELC JUDGEIn the presence of:Appellant – Mr. Kipruto for Tess KimothoRespondent – Mr. MugoKinyua – Court Assistant