https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3598

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT VIHIGA** **ELCLA NO. E002 OF 2025** HENRY K.M. SAVINI ……………………………………………. 1ST APPELLANT ISAAC SAVINI …………………………………………………… 2ND APPELLANT VERSUS ANYONY MWABISI MUGALA………………………….…....1ST RESPONDENT CASTRO FELIX MUSINYIKHU MUGALA…….………….2ND RESPONDENT ***(Being an appeal from the judgment and decree of Hon. V. O. Amboko delivered on the 30th day of September 2024 in KAKAMEGA MCEL CASE NO. E130 OF 2022)*** BETWEEN HENRY K.M. SAVINI …………………………………..…………. 1ST PLAINTIFF ISAAC SAVINI …………………………………..………………… 2ND PLAINTIFF VERSUS ANYONY MWABISI MUGALA………………………..….…....1ST DEFENDANT CASTRO FELIX MUSINYIKHU MUGALA …….………….. 2ND DEFENDANT **JUDGEMENT** Introduction The record of appeal filed herein dated 19th December 2025 shows that the appellants were the plaintiffs in Kakamega CMC E & L CASE NO. E130 OF 2022, (the suit), who vide the plaint dated 29th July 2022, sued the Respondents over a parcel of land known as ISUKHA/KAMBIRI/519 (the suit land). The case of the appellants, who claimed to be the administrators of the estate of one SABINI LUBWA, deceased, was that the deceased, who was their father, was the registered owner of the suit land till the year 1985, when the land was transferred to one JOSEPH J. MUGALLA irregularly. They claimed that the said JOSEPH J. MUGALLA never took possession of the land parcel from their father. They further averred that in the year 2005 their father, late SABINI, bequeathed the land to them and that they continued to use the land jointly and severally. The appellants’ complaint in the suit was that in the year 2022 they received a demand notice from the Defendants’ lawyer alleging trespass. The appellants claimed that the Defendants’ title had become obsolete by reason of the plaintiffs’ exclusive possession of the land since the year 1995, a period of 27 years. The appellants therefore sought: - 1. **A declaration that the title issued to the late Joseph J. Mugalla on 19.12.1995 expired due to adverse possession in favour of the late SABINI LUBWA, who was in possession till his death.** 2. **A declaration that by the act of Limitation of Actions Act, the title held by the late Mugalla was not available to the estate of the late Mugalla by the time the Defendants did Succession Cause No. 193 of 2015.** 3. **An order cancelling title issued to the Defendants on 3.11.2022.** 4. **An order transferring land parcel number ISUKHA/KAMBIRI/519 to the Plaintiffs.** 5. **Costs.** The record shows that in response to the claim, the Respondents filed a joint Statement of Defence and Counterclaim dated 15th November 2022 and a Notice of Preliminary Objection of even date. The case of the Respondents was that the suit land was transferred to their late father, namely JOSEPH J. MUGALLA, for valuable consideration and that the transfer was not irregular. That it was their late father who, until his demise on 19th October 2013, utilized the land for agricultural purposes and that they have continued with the activity to date. The Respondents denied that the appellants had met the threshold for adverse possession and prayed that the suit be dismissed. By way of Counterclaim, the Respondents sought for an order of eviction of the appellants from the suit land and a permanent injunction to restrain the appellants from trespassing, undertaking any form of agricultural and/or construction activities on or in any manner, interfering with the Respondents’ use of the suit land. The proceedings show that the suit was heard before the trial court, which, vide the judgment dated 30th September 2024, found that the appellants had not proved their case on a balance of probabilities and dismissed the suit with costs to the Respondents. The court found that the Counterclaim had succeeded and allowed it with costs to the Respondents. The appeal Aggrieved by the judgment, the Appellants preferred the present appeal vide the Memorandum of Appeal dated 30th September 2024 on the grounds that: - 1. **the Honourable Court erred in law and fact in holding that the Appellants did not prove their case to the required standards.** 2. **the Honourable Court erred in law and fact in holding that the Respondents had proved their Counterclaim on a balance of probabilities.** 3. **the Learned Magistrate erred in fact and law in failing to take into account of glaring contradictions apparent in the Respondents’ pleadings and testimonies in court.** 4. **the Learned Magistrate erred in law and fact in misapplying the doctrine of adverse possession to the detriment of the Appellants.** 5. **the Learned Magistrate erred in law and fact in holding that the Respondents took possession of the suit land at the time of purchase of the land when there was no evidence adduced in that regard.** Submissions The appeal was heard by way of written submissions. On behalf of the Appellants, written submissions dated 7th March 2026 were filed by the firm of Momanyi Manyoni & Co. Advocates and on behalf of the Respondents, written submissions dated 12th March 2026 were filed by the firm of K. N. Wesutsa & Co. Advocates. Analysis and determination This being a first appeal, this court not being bound by the findings of the trial court, is obligated to re-analyse the evidence and draw its own conclusions. In *Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123* it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. It stated **“an appeal to this 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 witnesses and should make due allowance in that respect.”** The evidence placed before the trial court was comprised of the testimonies of the 1st Appellant, who testified as PW1, and Henry Festo Ayia Muchika, who testified on behalf of the Appellants, and the documents that they produced as exhibits. And on behalf of the Respondents, the 1st Respondent testified as DW1 and called one witness. Grounds 1 and 2 of the appeal faulted the trial court for holding that the Appellants did not prove their case to the required standard. It was submitted on behalf of the Appellants that grounds 1 and 2 of the appeal relate to the standard of proof. Counsel submitted that note must be given to the nature of the transaction which begot the title of the late Mugalla. That the same was not done by a willing buyer, willing seller. That it was an auction, meaning that the purchaser had to formally take possession of the land. That there is no evidence at all of the late Mugalla getting possession from the plaintiffs’ family. That the evidence of purchase at an auction contradicts the statement filed in court by DW1 where he stated that his father acquired the land for valuable consideration from the late Sabini Lubwa (the father of the plaintiffs/Appellants). Counsel submitted further that the counterclaim ought to have been dismissed on account of section 7 of the Limitation of Actions Act. That the right of action of the Respondents accrued in the year 1995 specifically on 19. 12. 1995 and the counterclaim was filed in the year 2022, which was after a period of 27 years. On behalf of the Respondents, it was submitted that the appeal is incompetent as it arises from proceedings that were conducted without jurisdiction. That the appellants cannot escape the jurisdictional defect by arguing that the decision in the *Sugawara case* was delivered after the judgment in the present case. Counsel submitted that the trial court lacked jurisdiction to entertain the claim of adverse possession, that the proceedings and judgment delivered therein are null and void and the appeal which is founded on false proceedings is incompetent. Counsel urged the court to strike out the appeal for being incompetent, to declare the proceedings and judgment in Kakamega MCEL case no. E130 OF 2022 a nullity and to award the costs of the appeal to the Respondents. The standard of proof in Civil Cases is proof on a balance of probabilities. In *William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526* it was held: “In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” The evidence of PW1 was contained in his witness statement, which was adopted as his evidence in chief. The witness statement is on pages 8 to 9 of the record of appeal and is dated 29th July 2022. He had stated in the witness statement that the suit land belonged to his late father by the name of Sabini Lubwa, who prior to his death, was the registered owner of the land. That Sabini Lubwa later moved to land parcel no. ISUKHA/KAMBIRI/521 and bequeathed the suit land to the Appellants in 2005. That when the late Mugalla became registered as owner of the land in the year 1995, their father did not relinquish possession. That he had his family house on the land and used the land for farming, especially maize and sugarcane. That he also had cows and that he generally used the land. That Mugalla never attempted at any time to gain possession from the Appellants’ father and that he never claimed the land during the lifetime of the father of the Appellants. That by the year 2007, the Appellants’ father had used the land for 12 years since the same was registered in Mugalla’s name. That the Respondents’ attempt to claim the land was in the year 2022. In court, PW1 testified that he lives on the land and wanted to continue living thereon and that he was praying for the official title deed. He produced documents, namely Certificate of Confirmation of Grant, Certificate of Official Search, Letter dated 19/5/2022, copy of register, Certificate of Death and transfer form. On cross-examination, he stated, inter alia, that he did not understand how the transfer of the land in favour of Anthony Mugalla happened. That he built his house on the suit land and has lived thereon since 2005. PW2 was Henry Festo Ayia Muchika. He adopted the contents of his witness statement as his evidence in chief. The witness statement dated 29th July 2022 is on page 10 of the record of appeal. He stated that the suit land belonged to Sabini Lubwa, who was his brother and father to the appellants, and who had a home and had planted crops thereon. He stated that before Sabini Lubwa died, he physically partitioned the suit land into two and gave it to the plaintiffs and moved to his other land. And that since Sabini died in the year 2006, the Appellants are using the land to plant maize and sugarcane. That currently, the Appellants had leased out part of the land. On cross-examination, PW2 stated that the Appellants were his nephews and that he did not know whether the deceased (Sabini Lubwa) sold the land. The Appellants' claim before the trial court was a claim based on the doctrine of adverse possession. Despite there being a procedure expressly provided by law in section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, for approaching the court in a claim based on adverse possession, the Appellants chose to approach the court by way of plaint. Section 38 of the Act provides that: - (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 (2)An order made under sub-section (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act. And Order 37 Civil Procedure Rules provides: - “(1) An Application under Section 38 of the Limitation of Actions Act shall be made by Originating Summons (2) The summons shall be supported by an Affidavit to which a certified extract of the title to the land in question has been annexed.” There is no explanation why the appellants, who were competently represented, chose to adopt the wrong procedure in approaching court. However, be that as it may, superior courts have held such procedural lapse not to be fatal. In *Chevron (K) Ltd vs Harrison Charo Wa Shutu [2016] eKLR,* the Court of Appeal held that “The courts, have since this decision [the decision in [*Njuguna Ndatho v Masai Itumu & 2 others, Civil Appeal No 231 of 1999*](https://new.kenyalaw.org/akn/ke/judgment/keca/2002/161)], held that a claim of adverse possession can be brought by a plaint ...” In *Stephen Kaguku Mariba v Kibe Mariba, Civil Appeal No 188 of 2002*, on whether a plea for orders of adverse possession, initiated by way of plaint instead of an Originating Summons, was sustainable, the Court of Appeal examined the framework in Order XXXVI rule 3D and 10 of the then Civil Procedure Rules. The said framework was re-enacted as Order 37 rule 7 and 19(1) of the current Civil Procedure Rules. The Court of Appeal concluded that “While it is true that the suit was commenced by plaint instead of by the procedure of Originating Summons, we do not consider the error to be fatal in view of the provisions of Order XXXVI R 10 of the Civil Procedure Rules. That provision requires the trial court in an appropriate case, to continue proceedings commenced by Originating Summons as though the same had been begun by Plaint.” Being a claim of adverse possession, the Appellants needed to prove on a balance of probabilities that they had had exclusive, peaceful, actual and continuous possession of the suit land for a period exceeding 12 years. The elements of adverse possession outlined by the Court of Appeal in the case of *Mtana Lewa –vs- Kahindi Ngala Mwagandi [2015] e KLR* are that: “Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force nor stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” The Respondents denied that the Appellants had had exclusive possession of the land. DW1 adopted the contents of his witness statement as his evidence in chief. He stated that upon purchasing the land for valuable consideration from the Appellants’ father, his father utilized the land for agricultural purposes, an activity that the Defendants continued with to date. That it was in 2022 that the Respondents received information that the Appellants were selling portions of the suit land to 3rd parties, which prompted the respondents to issue a demand notice. In court, DW1 stated that he farms the land, that there is a semi-permanent structure on the land which was built by people who bought the land from PW1. On cross-examination, he stated that people entered the land in the year 2021. That he saw 4 semi-permanent houses on the land. That they used to plant maize most of the time. That he planted cypress trees on the land. That it was in the year 2021 when he visited the land and found somebody constructing on the land. DW2 was Beda Zacharia Muhindi. He adopted the contents of his witness statement as his evidence. He stated on cross-examination and re-examination that before the year 2020 the Defendants used to cultivate the land, but from the year 2020 other people came and built on the land. The record shows that the trial court considered the evidence and found that the late Sabini Lubwa (the Appellants’ father) had not been in occupation of the suit land for 12 years. That there was no evidence produced that Sabini Lubwa was on the land with the knowledge of the late Joseph Mugalla. The court then proceeded to find that the plaintiffs (Appellants herein) had not proved their case on a balance of probabilities. Under the provisions of sections 107 to 109 and 112 of the Evidence Act, the burden of proof was with the Appellants to prove the elements of adverse possession. While the record (the green card) shows that the suit land was transferred in favour of Joseph J. Mugalla on 19.12.1995, and that according to the certificate of death produced as exhibit, Sabini Lubwa died on 2nd June 2006, there is no evidence that Sabini Lubwa lived on the land from or before the date of registration of the land in favour of Joseph J. Mugalla to the date of his death. The evidence of PW1 was that at some point, the said Sabini Lubwa “bequeathed” the land to the Appellants and moved to land No. 521 in the year 2005. This evidence was corroborated by the testimony of PW2. The contention that Sabini Lubwa lived and used the suit land for 12 years before his demise is not supported by the evidence. The submission by the Respondents that even assuming that the said Sabini Lubwa lived and had possession of the suit land from the date the land was registered in the name of Joseph J. Mugalla to the date of his death, the most he could have had such possession is 10 to 11 years is supported by the evidence. From 19.12.1995 when the land was registered in the name of Joseph J. Mugalla to 2.6.2006 when Sabini Lubwa died, the statutory period of 12 years had not elapsed. Although PW1 claimed that he built his home on the land where he lives, there was no evidence of this. PW2 testified that the Appellants had actually leased out part of the land to get an income. There was no agriculture officer’s report, no surveyor’s report or even photographs to confirm the claim of the Appellants and to corroborate the claim that the Appellants occupy and have developed the suit land. The testimony of the Respondents to the effect that it was only recently after the year 2020 that 3rd parties entered the land and began to construct is more probable in the absence of evidence of occupation and/or possession of the suit land by the appellants before the year 2020. Further, the appellants pleaded that transfer of the suit land in favour of the Respondents’ father was irregular. A claim of adverse possession cannot be based on title that the claimant pleads was irregularly acquired. In addition, the court in which the claim was filed did not have jurisdiction under the provisions of section 38 of the Limitation of Actions Act to entertain claims of adverse possession. The issue of jurisdiction was raised by the Respondents. I find that the trial court correctly assessed the evidence placed before it and found that adverse possession had not been proved. Grounds 1 and 2 of the appeal therefore fail. Ground 3 of the appeal faults the trial court for failing to take into account glaring contradictions in the Respondents’ evidence. It was submitted on behalf of the Appellants that the contradictions which made the Respondents’ case untenable included the following aspects: - 1. In the defendants’ pleadings, the sale was between the late Sabini and the late Mugalla, while in court DW1 stated that it was by auction. 2. That while DW1’s testimony is that possession was effected by his parents, DW2 speaks of them taking possession as agent and that this evidence is absent in DW1’s evidence. 3. That DW1 does not state how they lost possession. That his testimony is that there are 4 buildings on the suit land, all belonging to the plaintiffs/Appellants. That he does not know when the buildings were erected. 4. That if the Respondents ever had any possession, how come they lost possession and allowed people to erect up to 4 houses on the land and continue occupying the land till the case was filed. I have considered the pleadings, evidence and the submissions. The suit did not challenge the fact that the suit land was registered in the name of Joseph J. Mugalla. Though the Appellants pleaded that the transfer was irregular, no relief was sought against the Respondents based on the alleged irregularity or fraud. The green card produced by the Appellants confirmed that there was a charge registered on 30.1.1985 against the suit land and that the land was later transferred to Joseph J. Mugalla. It has not been demonstrated that the alleged contradictions materially affected the credibility of the evidence of the Respondents. I find that the evidence of both DW1 and DW2 is sufficient on how agents of the Appellants entered the suit land and began construction. Ground 3 of the appeal has not been proved. Ground 4 of the appeal was abandoned. Ground 5 of the appeal also relates to possession. The Appellants fault the trial court for finding that the Respondents took possession of the suit land at the time of purchase of the land. The burden of proof was with the Plaintiffs/Appellants to prove that they had possession of the land. They failed to do so, as the court has already herein found. I have considered the evidence. The Respondents are the registered owners of the suit land. The green card shows that the land was transmitted in their favour on 3. 11. 2021 as a result of Kakamega H. C Succ. Cause No. 193 of 2025. They are entitled to protection provided in Article 40 of the Constitution of Kenya 2010 and sections 24, 25 and 26 of the Land Registration Act which protects sanctity of title. One of the reliefs sought by the appellants was cancellation of the title held by the Respondents and transfer of the land in favour of the appellants. Grounds for cancellation of title were not proved. The claim of adverse possession having failed, the Respondents were entitled to have vacant possession of the land. I find that the trial court did not err in dismissing the appellants’ claim and in allowing the counterclaim. I find no reason to interfere with the findings and decision of the trial court. I find that the appeal lacks merit and the upshot is that: 1. Appeal is dismissed. 2. Costs are awarded to the Respondents. Orders accordingly. **Dated and signed at Kisumu on this 11th day of June 2026 and delivered virtually through Microsoft Teams Video Conferencing Platform.** **E. ASATI,** **JUDGE.** In the presence of: Atika..Court Assistant. Kundu for the appellants. Momanyi for the Respondents.